Ying Chen v. Holder , 350 F. App'x 563 ( 2009 )

03-40186-ag
Pan v. Holder
BIA
Chew, IJ
A073 597 034
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19 th day of November, two thousand nine.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON. O. NEWMAN,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 _________________________________________
13
14 LIWEN PAN,
15 Petitioner,
16
17 v. 03-40186-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL, *
21 Respondent.
22 _________________________________________
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
automatically substituted for former Attorney General John
Ashcroft as respondent in this case.
0 9 1 4 0 9 -3 0
1 FOR PETITIONER: Theodore N. Cox, New York, New York.
2
3 FOR RESPONDENT: Jeffrey S. Bucholtz, Acting
4 Assistant Attorney General; Barry J.
5 Pettinato, Assistant Director;
6 Kristin A. Moresi, Trial Attorney,
7 Office of Immigration Litigation,
8 United States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED, that the petition for review
14 is DENIED.
15 Petitioner Liwen Pan, a native and citizen of the
16 People’s Republic of China, seeks review of a June 16, 2003
17 order of the BIA, reversing the October 16, 2001 decision of
18 Immigration Judge (“IJ”) George T. Chew, which granted her
19 application for withholding of deportation. In re Liwen
20 Pan, No. A073 597 034 (B.I.A. June 16, 2003), rev’g No. A073
21 597 034 (Immig. Ct. N.Y. City Oct. 16, 2001). We assume the
22 parties’ familiarity with the underlying facts and
23 procedural history in this case.
24 When the BIA does not adopt the decision of the IJ to
25 any extent, we review only the decision of the BIA. See Yan
26 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005); Jin Yu
27 Lin v. U.S. Dep’t of Justice, 413 F.3d 188, 191 n.4 (2d Cir.
2
1 2005). We review the agency’s factual findings under the
2 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);
3 see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).
4 We review de novo questions of law and the application of
5 law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d
6 99, 110 (2d Cir. 2008).
7 Pan argues that the BIA erred in concluding that she
8 failed to demonstrate her eligibility for withholding of
9 deportation based on the birth of her second child in the
10 United States. However, this argument fails because we have
11 previously reviewed the BIA’s consideration of evidence
12 similar to that which Pan presented and have found no error
13 in its conclusion that such evidence is insufficient to
14 establish an objectively reasonable fear of persecution.
15 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.
16 2008); see also Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
17 2006) (recognizing that a withholding claim necessarily
18 fails if the applicant is unable to show the objective
19 likelihood of persecution needed to make out an asylum
20 claim). Further, while Pan argues that the BIA ignored some
21 of her evidence, we “presume that [the agency] has taken
22 into account all of the evidence before [it], unless the
3
1 record compellingly suggests otherwise,” and there is
2 nothing in the BIA’s decision compelling the conclusion that
3 it failed to take into account Pan’s evidence. See Xiao Ji
4 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d
5 Cir. 2006). To the contrary, the BIA acknowledged that the
6 record contained unattributed reports of isolated incidents
7 of forced abortions and forced sterilizations in Pan’s home
8 province of Fujian, but reasonably found that such evidence
9 was insufficient to indicate a likelihood that Pan would be
10 singled out for such treatment, particularly in light of
11 evidence in the record demonstrating the lax and uneven
12 enforcement of the family planning policy in Fujian. See
13 Jian Hui Shao, 546 F.3d at 153, 160, 165, 171 (finding that
14 the BIA reasonably concluded that “unattributed ‘reports’ of
15 forced sterilization that lack[] any specificity as to
16 number or circumstance” do not, by themselves, demonstrate a
17 reasonable possibility that a petitioner will face future
18 persecution).
19 Moreover, contrary to Pan’s argument, Mufied v.
20 Mukasey, 508 F.3d 88 (2d Cir. 2007) does not indicate that
21 remand is warranted in this case. Unlike the situation in
22 Mufied, in which the petitioner raised a pattern and
4
1 practice claim that the agency failed to consider, 508 F.3d
2 at 91, in this case, despite Pan’s failure to raise such a
3 claim, the BIA reasonably found that enforcement of the
4 family planning policy in Fujian was sporadic and that
5 forced abortions and sterilizations were not conducted
6 systematically. See Jian Hui Shao, 546 F.3d at 150 n.6,
7 160-61, 165.
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19 By:___________________________
5