Yi Xian Liu v. Holder , 350 F. App'x 567 ( 2009 )

07-2958-ag
Dong v. Holder
BIA
Bukszpan, IJ
A078 840 543
A098 582 554
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 XUE MEI DONG, QIN YAO ZHENG,
15 Petitioners,
16
17 v. 07-2958-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
Alberto R. Gonzales as respondent in this case.
0 9 1 4 0 9 -3 2
1 FOR PETITIONERS: Gary J. Yerman, New York, New York.
2
3 FOR RESPONDENT: Gregory G. Katsas, Assistant
4 Attorney General; M. Jocelyn Lopez
5 Wright; Assistant Director; Jonathan
6 Robbins, Attorney, Office of
7 Immigration Litigation, United
8 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 Xue Mei Dong and Qin Yao Zheng, natives and citizens of
16 the People’s Republic of China, seek review of a June 22,
17 2007 order of the BIA, affirming the November 7, 2005
18 decision of Immigration Judge (“IJ”) Joanna Miller Bukszpan,
19 which denied their applications for asylum, withholding of
20 removal, and relief under the Convention Against Torture
21 (“CAT”). In re Xue Mei Dong, Qin Yao Zheng, No. A078 840
22 543, A098 582 554 (B.I.A. Jun. 22, 2007), aff’g No. A078 840
23 543, A098 582 554 (Immig. Ct. N.Y. City Nov. 7, 2005). We
24 assume the parties’ familiarity with the underlying facts
25 and procedural history in this case.
26 When the BIA affirms the IJ’s decision in all respects
27 but one, we review the IJ’s decision as modified by the BIA
2
1 decision, i.e., “minus the single argument for denying
2 relief that was rejected by the BIA.” Xue Hong Yang v. U.S.
3 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We
4 review the agency’s factual findings under the substantial
5 evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also
6 Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We
7 review de novo questions of law and the application of law
8 to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99,
9 110 (2d Cir. 2008).
10 Petitioners argue that the BIA erred in concluding that
11 they failed to demonstrate their eligibility for relief from
12 removal based on the birth of their U.S. citizen children.
13 However, this argument fails because we have previously
14 reviewed the BIA’s consideration of evidence similar to that
15 which petitioners presented and have found no error in its
16 conclusion that such evidence is insufficient to establish
17 an objectively reasonable fear of persecution. See Jian Hui
18 Shao v. Mukasey, 546 F.3d 138, 156-68 (2d Cir. 2008).
19 Moreover, petitioners failed to demonstrate their
20 eligibility for CAT relief based on their illegal departure
21 from China because they are not “entitled to CAT protection
22 based solely on the fact that [they are] part of the large
3
1 class of persons who have illegally departed China,” Mu
2 Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d
3 Cir. 2005), and they failed to provide the particularized
4 evidence necessary to demonstrate their eligibility for such
5 relief, see Pierre v. Gonzales, 502 F.3d 109, 118-19 (2d
6 Cir. 2007).
7 In addition, we do not find that the BIA erred in
8 noting that petitioners’ children have U.S. passports, have
9 been residing in China, and have not suffered any harm in
10 China because, contrary to petitioners’ argument, the BIA
11 did not rely on such facts to find them not credible as to
12 their subjective fear of returning to China. Cf. Uwais v.
13 U.S. Att’y General, 478 F.3d 513, 518-19 (2d Cir. 2007)
14 (finding that the BIA erred in relying on petitioner’s
15 child’s trip to Sri Lanka to find petitioner’s claimed fear
16 of returning to Sri Lanka not plausible). Additionally, we
17 need not review the IJ’s discretionary denial of
18 petitioners’ application for asylum because the BIA
19 explicitly declined to review that determination. See Xue
20 Hong Yang, 426 F.3d at 522.
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
4
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
11 By:___________________________
5