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Lin v. Holder

United States Court of Appeals, Second Circuit
Apr 15, 2011
419 F. App'x 95 (2d Cir. 2011)

Opinion

Nos. 08-1525-ag, 08-4139-ag, 08-5000-ag, 08-6266-ag, 09-0167-ag, 09-0550-ag, 09-1016-ag, 09-1035-ag, 9-1877-ag, 09-2827-ag, 09-2853-ag, 09-2855-ag, 09-2967-ag, 09-3083-ag, 09-3206-ag, 09-3858-ag, 09-3891-ag, 09-4219-ag, 09-4220-ag, 09-4374-ag, 09-4613-ag, 09-4644-ag, 09-4648-ag, 09-4649-ag, 09-4711-ag, 09-4712-ag, 09-4791-ag, 09-1821-ag, 09-4837-ag, 09-4905-ag, 09-4936-ag, 09-5113-ag, 09-5262-ag, 10-0277-ag.

April 15, 2011.

UPON DUE CONSIDERATION of these petitions for review of several Board of Immigration Appeals ("BIA") decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for review are DENIED.

Lisa M. Arnold, Esq., U.S. Department of Justice, Washington, DC, for Michael B. Mukasey.

Richard Tarzia, Esq., The Law Office of Richard Tarzia, Belle Mead, NJ, for Yan Yun Lin.

PRESENT: DENNIS JACOBS, Chief Judge, JON O. NEWMAN, PIERRE N. LEVAL, Circuit Judges.



SUMMARY ORDER

Each of these petitions challenges a decision of the BIA affirming an immigration judge's ("IJ") decision denying a motion to reopen or denying a motion to reopen in the first instance based on either the movant's failure to demonstrate changed country conditions sufficient to avoid the applicable time and numerical limits or the movant's failure to demonstrate prima facie eligibility for the underlying relief sought. See 8 C.F.R. §§ 1003.2(c), 1003.23(b). The applicable standards of review are well-established. See Jian Hui Shoo v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).

Petitioners, all natives and citizens of China, filed motions to reopen based on their claim that they fear persecution because they have one or more children in violation of China's coercive population control program. For largely the same reasons as this Court set forth in Jian Hui Shao, 546 F.3d at 158-73, we find no error in the BIA's decisions. While the petitioners in Jian Hui Shao were from Fujian Province, as are most of the petitioners here, five of the petitioners are from Zhejiang Province. As with the evidence discussed in Jian Hui Shao, which concerned Fujian Province, the evidence proffered by these petitioners concerning Zhejiang Province either does not discuss forced sterilizations or involves isolated incidents of persecution of individuals who are not similarly situated to the petitioners. See Jian Hui Shao, 546 F.3d at 160-61, 170-71.

The petitioners in Xiu Ying Wei v. Holder, No. 09-2967-ag; Jiang Deng v. Holder, No. 09-3891-ag; Xue Feng Huang v. BCIS, No. 09-4613-ag; Jing Li v. Holder, No. 09-4821-ag; and Suzhu Zhao v. Holder, No. 09-5113-ag.

Some of the petitioner argue that the agency applied an incorrect burden of proof by requiring them to establish more than their prima facie eligibility for relief. However, in those cases, the agency either reasonably relied on their failure to demonstrate changed country conditions excusing the untimely filing of their motions, or concluded that they failed to establish their prima facie eligibility for relief. See 8 C.F.R. §§ 1003.2(c), 1003.23(b); see also INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).

The petitioners in Xing Qiang Yang v. Holder, No. 08-5000-ag; Xin Ying Zheng v. Holder, No. 09-4219-ag; ChunHui Huang v. Holder, No. 09-4220-ag; Xiao Li Liu v. Holder, No. 09-4905-ag; and Zhang Bing Chen v. Holder, No. 09-4936-ag.

Some of the petitioner argue that the agency failed to give sufficient consideration to the statement of Jin Fu Chen, who alleged that he suffered forcible sterilization after his return to China based on the births of his two children in Japan. A prior panel of this Court remanded a petition making a similar claim so that Jin Fu Chen's statement (which was submitted to the BIA after a remand) could be considered by the IJ. See Zheng v. Holder, 361 Fed.Appx. 184 (2d Cir. 2010). Since that remand, the BIA has repeatedly concluded that Jin Fu Chen's statement does not support a claim of changed country conditions or a reasonable possibility of persecution. Accordingly, we find no abuse of discretion in the BIA's summary consideration of that statement in these cases. See Jian Hui Shoo, 546 F.3d at 169 (recognizing that the Court has rejected the notion that the agency must "expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner"); see also Wei Guang Wang v. BIA 437 F.3d 270, 275 (2d Cir. 2006) (providing that the agency may summarily consider evidence that is "oft-cited" and that it "is asked to consider time and again"). We cannot say, furthermore, that the agency's conclusions concerning the probative force of the statement involved any error of law.

The petitioners in Jun Qin Ke v. Holder, No. 08-4139-ag; Xing Qiang Yang v. Holder, No. 08-5000-ag; Dao-Shu Lin v. Holder, No. 09-0167-ag; ChunHui Huang v. Holder, No. 09-4220-ag; Yan Chen v. Holder, No. 09-4837-ag; and Zhang Bing Chen v. Holder, No. 09-4936-ag.

Eight of the petitioners argue that the BIA erred by relying on the U.S. Department of State's 2007 Profile of Asylum Claims and Country Conditions in China ("2007 Profile") because statements in that document are based on mistranslated and contradictory evidence. However, we have repeatedly concluded, as the BIA did here, that the purportedly corrected translations do not materially alter the meaning of the 2007 Profile by demonstrating a risk of forced sterilization. To the extent that the BIA declined to credit some of the petitioners' unauthenticated, individualized evidence in light of an underlying adverse credibility determination, the BIA did not abuse its discretion. See Qin Wen Zheng v. Gonzales, 500 F.3d 148, 146-47 (2d Cir. 2007).

The petitioners in Jinxiu Zheng v. Holder, No. 09-1877-ag; Ming Teng Zhang v. Holder, No. 09-2827-ag; Ming Ying Zheng, Kok Poh Lin v. Holder, No. 09-2853-ag; De Yong Chen v. Holder, No. 09-2855-ag; Zhen Guang Jiang v. Holder, No. 09-3083-ag; Shuai Zheng v. Holder, No. 09-4374-ag; TianGong Zheng v. Holder, No. 09-4644-ag; and Xiu Zhen Lin v. Holder, No. 09-4712-ag.

The petitioners in Xiu Zhu v. Holder, No. 09-0550-ag; Jiang Deng v. Holder, No. 09-3891-ag; Xin Ying Zheng v. Holder, No. 09-4219-ag; TianGong Zheng v. Holder, No. 09-4644-ag; Yi Jian Wang v. Holder, No. 09-4649-ag; Bo Kun Zhu v. Holder, No. 09-4711-ag; Mei Rong Chen v. Holder, No. 09-4791-ag; Jing Li v. Holder, No. 09-4821-ag; Xiao Li Liu v. Holder, No. 09-4905-ag; and Tan Lan Chi v. Holder, No. 09-5262-ag.

Finally, one of the petitioners argues that the BIA violated her right to due process and equal protection of the law by refusing to reopen her proceedings to file a successive application for withholding of removal and CAT relief. The petitioner's equal protection argument is foreclosed by Yuen Jin v. Mukasey, 538 F.3d 143, 158-59 (2d Cir. 2008). We find no merit to petitioner's due process argument. Assuming, arguendo, that petitioner has a protected interest in withholding of removal and CAT relief, we conclude that she received constitutionally sufficient process when the agency adjudicated her initial application for relief and provided her the opportunity to submit evidence in support of two motions to reopen. See id. at 157.

The petitioner in Mei Rong Chen v. Holder, No. 09-4791-ag.

For the foregoing reasons, these petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).


Summaries of

Lin v. Holder

United States Court of Appeals, Second Circuit
Apr 15, 2011
419 F. App'x 95 (2d Cir. 2011)
Case details for

Lin v. Holder

Case Details

Full title:YAN YUN LIN v. HOLDER, A095 461 815 Jun Qin Ke v. Holder, A073 661 093…

Court:United States Court of Appeals, Second Circuit

Date published: Apr 15, 2011

Citations

419 F. App'x 95 (2d Cir. 2011)