Huang v. Holder ( 2012 )


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  • 08-5530-ag
    Huang v. Holder
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
    ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
    RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
    A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
    FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
    A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
    REPRESENTED BY COUNSEL.
    At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of New
    York, on the 12th day of January, two thousand twelve.
    PRESENT:
    DENNIS JACOBS,
    Chief Judge,
    JON O. NEWMAN,
    PIERRE N. LEVAL,
    Circuit Judges.
    _______________________________________
    XIU QIN HUANG v. HOLDER,1                                          08-5530-ag
    A077 958 016
    _______________________________________
    YAO LING WANG, XIAO GAO v. HOLDER,                                  10-291-ag
    A088 378 231
    A088 378 232
    _______________________________________
    XUE QIN LIN v. U.S. DEP’T OF JUSTICE,
    ERIC H. HOLDER, JR.,                                                10-321-ag
    A099 083 219
    1
    Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
    Attorney General Eric H. Holder, Jr., is automatically substituted
    as respondent where necessary.
    09262011-1-28
    ZHONG LIN JIANG v. HOLDER,                 10-460-ag
    A099 697 058
    _______________________________________
    YUE JIN LIU v. HOLDER,                     10-843-ag
    A088 530 507
    _______________________________________
    QIN LIN v. HOLDER,                         10-923-ag
    A088 377 936
    _______________________________________
    YING WANG v. HOLDER,                       10-947-ag
    A088 378 141
    _______________________________________
    JIAN XIN GAO v. HOLDER,                   10-1022-ag
    A089 253 260
    _______________________________________
    XIU QIN CHEN v. HOLDER,                   10-1031-ag
    A098 480 124
    _______________________________________
    XIAO JING XIA, CHANG GUANG DONG
    v. HOLDER,                                10-1036-ag
    A098 973 227
    A098 902 360
    _______________________________________
    YIN YING CAO v. HOLDER,                   10-1171-ag
    A099 927 142
    _______________________________________
    MEI RU LIN v. HOLDER,                     10-1268-ag
    A098 279 231
    ___________________________
    XIU FANG CHEN, A.K.A. JIN FANG CHEN
    v. HOLDER,                                10-1291-ag
    A088 380 456
    _______________________________________
    09262011-1-28                 -2-
    MEI ZHU LIN v. HOLDER,                         10-1292-ag
    A093 396 857
    _______________________________________
    ZHU CHAO WANG v. HOLDER,                       10-1293-ag
    A089 253 373
    _______________________________________
    QIN PING LIN, FEI GUAN v. HOLDER,              10-1422-ag
    A090 347 257
    A090 347 258
    _______________________________________
    LIN FEI XIE v. HOLDER,                         10-1424-ag
    A099 683 978
    _______________________________________
    AI QIN SHI, A.K.A. XI LEI YANG, YONG
    JIE LIU v. HOLDER,                             10-1837-ag
    A089 252 403
    A089 252 404
    _______________________________________
    XIU JIANG HUANG v. HOLDER,                     10-1895-ag
    A088 524 966
    _______________________________________
    YU PING BAO v. HOLDER,                    10-1902-ag (L);
    A098 419 779                              11-843-ag (Con)
    _______________________________________
    YONG CHEN v. HOLDER,                           10-1998-ag
    A070 898 117
    _______________________________________
    XUE M. ZHENG v. HOLDER,                        10-2013-ag
    A088 530 523
    _______________________________________
    XIAODAN XU v. HOLDER,                          10-2249-ag
    A099 424 976
    _______________________________________
    09262011-1-28               -3-
    QIAO RONG LIN v. HOLDER,                                     10-2400-ag
    A099 927 241
    _______________________________________
    SAIHU WANG v. HOLDER,                                        10-2656-ag
    A096 808 755
    _______________________________________
    JIANDAN WU, ZHIXIANG CHENG v. HOLDER,                        10-2797-ag
    A088 552 425
    A099 186 862
    _______________________________________
    QIU YUN NI v. HOLDER                                         10-3336-ag
    A089 253 069
    _______________________________________
    UPON DUE CONSIDERATION of these petitions for review of
    Board of Immigration Appeals (“BIA”) decisions, it is hereby
    ORDERED, ADJUDGED, AND DECREED, that the petitions for review
    are DENIED.
    Each of these petitions challenges a decision of the BIA
    either affirming the decision of an immigration judge (“IJ”)
    denying asylum and related relief or reversing the IJ’s
    decision granting relief.           Some of the petitioners2 also
    challenge decisions of the BIA denying motions to remand or
    reopen.         The   applicable   standards   of   review   are   well-
    2
    The Petitioners in Zhong Lin Jiang v. Holder, No. 10-460-ag;
    Qin Lin v. Holder, No. 10-923-ag; and Yu Ping Bao v. Holder, Nos.
    10-1902-ag (L), 11-843-ag (Con).
    09262011-1-28                       -4-
    established. See Jian Hui Shao v. Mukasey, 
    546 F.3d 138
    , 157-
    58, 168-69 (2d Cir. 2008).
    Petitioners, all natives and citizens of China, sought
    relief from removal based on their claims that they fear
    persecution because they have had one or more children in
    violation of China’s population control program.      For largely
    the same reasons as this Court set forth in Jian Hui Shao, 
    546 F.3d 138
    , we find no error in the agency’s decisions.      See 
    id. at 158-72
    .      While the petitioners in Jian Hui Shao were from
    Fujian Province, as are most of the petitioners here, some
    petitioners3 are from Zhejiang Province.     Regardless, as with
    the evidence discussed in Jian Hui Shao, the evidence they
    have submitted relating to Zhejiang Province is deficient
    either because it does not discuss forced sterilizations or
    because it references isolated incidents of persecution of
    individuals who are not similarly situated to the petitioners.
    See 
    id. at 160-61, 171-72
    .
    3
    The petitioners in Xiao Jing Xia, Chang Guang Dong v. Holder,
    No. 10-1036-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Saihu Wang
    v. Holder, No. 10-2656-ag; and Jiandan Wu, Zhixiang Cheng v.
    Holder, No. 10-2797-ag.
    09262011-1-28                   -5-
    Some of the petitioners4 argue that the BIA erred by
    improperly conducting de novo review of determinations made by
    an IJ.          Many of them rely on a decision of the Third Circuit,
    ruling, in the context of a claim under the Convention Against
    Torture (“CAT”), that, although the BIA may review de novo
    conclusions of law as to whether the facts found satisfy a
    particular legal standard, it must employ a clear error
    standard in reviewing findings of fact, including predictions
    of future events.          See Kaplun v. Attorney General, 
    602 F.3d 260
     (3d Cir. 2010).         Their claims lack merit.   The BIA has not
    reviewed de novo any of the IJs’ factual findings.           Instead,
    the BIA has concluded, on de novo review, that the factual
    findings do not meet the legal standard of an objectively
    reasonable fear of persecution, in these cases, a fear of
    forced sterilization or economic persecution.           That approach
    is entirely consistent with the applicable regulation, 
    8 C.F.R. § 1003.1
    (d)(3).          See Jian Hui Shao, 
    546 F.3d at 162-63
    (concluding that the BIA did not erroneously conduct de novo
    4
    The petitioners in Zhong Lin Jiang v. Holder, No. 10-460-ag;
    Yue Jin Liu v. Holder, No. 10-843-ag; Yin Ying Cao v. Holder, No.
    10-1171-ag; Xiu Fang Chen v. Holder, No. 10-1291-ag; Mei Zhu Lin v.
    Holder, No. 10-1292-ag; Qin Ping Lin, Fei Guan v. Holder, No. 10-
    1422-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Ai Qin Shi, Yong
    Jie Liu v. Holder, No. 10-1837-ag; Xiu Jiang Huang v. Holder, No.
    10-1895-ag; Yu Ping Bao v. Holder, Nos. 10-1902-ag (L), 11-843-ag
    (Con); Yong Chen v. Holder, No. 10-1998-ag; and Qiu Yun Ni v.
    Holder, No. 10-3336-ag.
    09262011-1-28                        -6-
    review          of   the   IJ’s   factual   findings    by   making   “a   legal
    determination that, while [petitioners’] credible testimony
    was sufficient to demonstrate a genuine subjective fear of
    future          persecution,      more   was   needed   to   demonstrate    the
    objective reasonableness of that fear”).
    Some of the petitioners5 argue that the BIA failed to give
    sufficient consideration to the statement of Jin Fu Chen, who
    alleged that he suffered forced sterilization after his return
    to China based on the births of his two children in Japan.                     A
    prior panel of this Court has 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, No. 07-3970-ag (2d Cir. Jan. 15,
    2010).          Since the remand in Zheng, the BIA has repeatedly
    concluded that Jin Fu Chen’s statement does not support a
    claim of a well-founded fear of persecution.                  Accordingly, it
    is clear that further consideration of the statement in cases
    5
    The petitioners in Xiu Qin Huang v. Holder, No. 08-5530-ag;
    Zhong Lin Jiang v. Holder, No. 10-460-ag; Yue Jin Liu v. Holder,
    No. 10-843-ag; Xiao Jing Xia, Chang Guang Dong v. Holder, No. 10-
    1036-ag; Yin Ying Cao v. Holder, No. 10-1171-ag; Xiu Fang Chen v.
    Holder, No. 10-1291-ag; Mei Zhu Lin v. Holder, No. 10-1292-ag; Zhu
    Chao Wang v. Holder, No. 10-1293-ag; Qin Ping Lin, Fei Guan v.
    Holder, No. 10-1422-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Ai
    Qin Shi, Yong Jie Liu v. Holder, No. 10-1837-ag; Xiu Jiang Huang v.
    Holder, No. 10-1895-ag; Yong Chen v. Holder, No. 10-1998-ag; and
    Qiao Rong Lin v. Holder, No. 10-2400-ag.
    09262011-1-28                            -7-
    in which the IJ or the BIA failed to consider it would not
    change the result.              See Shunfu Li v. Mukasey, 
    529 F.3d 141
    ,
    150 (2d Cir. 2008).               Furthermore, the agency’s conclusion
    concerning the probative force of the statement was not in
    error.          Similarly, contrary to the argument raised in five of
    these        cases,6    it   would   be    futile     to    remand    for   further
    consideration of the statements of Mei Yun Chen and Jiangzhen
    Chen, women claiming to have been forcibly sterilized in
    Fujian Province for violating the family planning policy with
    the birth of their second children in Romania and Japan
    respectively,          because     the    BIA   has      reasonably    found     that
    neither woman is similarly situated to Chinese nationals
    returning to China with U.S. citizen children.                        See id.; see
    also Jian Hui Shao, 
    546 F.3d at 155, 161, 171-72
    .
    We      are   without    jurisdiction       to     consider   two   of    the
    petitions7 to the extent they seek review of the agency’s
    pretermission          of    petitioners’       applications     for    asylum     as
    untimely.          See 
    8 U.S.C. § 1158
    (a)(3).
    6
    In Yue Jin Liu v. Holder, No. 10-843-ag; Zhu Chao Wang v.
    Holder, No. 10-1293-ag; Qin Ping Lin, Fei Guan v. Holder, 10-1422-
    ag; Ai Qin Shi, Yong Jie Liu v. Holder, No. 10-1837-ag; and Yong
    Chen v. Holder, No. 10-1998-ag.
    7
    The petitions in Qin Lin v. Holder, No. 10-923-ag; and Ying
    Wang v. Holder, No. 10-947-ag.
    09262011-1-28                             -8-
    In Xiu Qin Huang v. Holder, No. 08-5530-ag, the agency
    reasonably relied on 2006 and 2007 U.S. Department of State
    reports as opposed to the outdated 1997 Tantou Town Family
    Planning Temporary Regulations petitioner submitted. See Jian
    Hui Shao, 
    546 F.3d at 166
    .           Moreover, it does not appear that
    the Tantou Town Regulations were material to petitioner’s case
    because the record evidence indicated that she resided and
    feared          persecution   in   Hunan   Town   and   not   Tantou   Town.
    Although petitioner refers to Tantou Town as her “hometown” in
    her brief, unsworn statements in a brief are not evidence.
    See Kulhawik v. Holder, 
    596 F.3d 296
    , 298 (2d Cir. 2009).
    In Zhong Lin Jiang v. Holder, No. 10-460-ag, the BIA did
    not err in declining to address the evidence petitioner
    submitted for the first time on appeal.                   See 
    8 C.F.R. § 1003.1
    (d)(3)(iv); see also Matter of Fedorenko, 
    19 I. & N. Dec. 57
    , 74 (BIA 1984).             Regardless, the evidence submitted
    was largely cumulative of the evidence in the record and not
    materially distinguishable from the evidence discussed in Jian
    Hui Shao.            In Qin Lin v. Holder, No. 10-923-ag, the BIA
    similarly did not err when it denied petitioner’s motion to
    remand based on her failure to establish her prima facie
    eligibility for relief.             See Li Yong Cao v. U.S. Dep’t of
    09262011-1-28                         -9-
    Justice, 
    421 F.3d 149
    , 156 (2d Cir. 2005); see also Jian Hui
    Shao, 
    546 F.3d at 165, 172
    .
    In      Ying   Wang   v.   Holder,      No.   10-947-ag,    the   agency
    reasonably found speculative the petitioner’s claimed fear
    that she would face persecution based on her intent to join an
    unregistered church in China. See Jian Xing Huang v. INS, 
    421 F.3d 125
    , 129 (2d Cir. 2005); see also Hongsheng Leng v.
    Mukasey, 
    528 F.3d 135
    , 143 (2d Cir. 2008).                   In Mei Ru Lin v.
    Holder,         No.    10-1268-ag,    we   do   not    consider    petitioner’s
    unexhausted past persecution claim.                   See Foster v. INS, 
    376 F.3d 75
    , 78 (2d Cir. 2004).                In Zhu Chao Wang v. Holder, No.
    10-1293-ag, the IJ did not abuse his discretion by declining
    to     admit      petitioner’s       late-filed       evidence    because   that
    evidence pre-dated the hearing at which he closed the record.
    See Dedji v. Mukasey, 
    525 F.3d 187
    , 191 (2d Cir. 2008).                     In Yu
    Ping Bao v. Holder, Nos. 1902-ag (L), 11-843-ag (Con), the BIA
    did not err in finding that the petitioner failed to establish
    her prima facie eligibility for relief based on her newly
    commenced practice of Falun Gong in the United States because
    she did not submit evidence that authorities in China are
    aware of or likely to become aware of her activities in the
    United States.            See Hongsheng Leng, 
    528 F.3d at 143
    .
    09262011-1-28                           -10-
    Finally, in Jiandan Wu, Zhixiang Cheng v. Holder, No. 10-
    2797-ag, petitioners assert the BIA, in ruling that they
    failed          to   satisfy   the   exceptional    and   extremely   unusual
    hardship requirement, erroneously minimized the impact their
    removal would have on their U.S. citizen children.                        The
    contention is both ineffective and moot.                  It is ineffective
    because the challenged decision was discretionary and did not
    involve a question of law or constitutional claim; our court
    is therefore without jurisdiction to review it. See Mendez v.
    Holder, 
    566 F.3d 316
    , 319-23 (2d Cir. 2009) (citing 
    8 U.S.C. § 1252
    (a)(2)(B); Barco-Sandoval v. Gonzales, 51                   
    6 F.3d 35
    ,
    39 (2d Cir. 2008). The contention is in addition moot because
    the agency also dispositively denied cancellation of removal,
    which decision petitioners have not challenged (and which we,
    in any event, would lack jurisdiction to review because it was
    a discretionary decision not involving a question of law or
    constitutional claim. See id.).
    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
    09262011-1-28                           -11-
    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).
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
    09262011-1-28                 -12-