Zhang v. Holder ( 2011 )

09-5036-ag
Zhang 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 4th day of May, two thousand eleven.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
_______________________________________
JIA JIA ZHANG, ZIQUANG GUO v.
HOLDER,1 07-4697-ag (L);
A078 959 523 09-4195-ag(Con)
A076 789 965
_______________________________________
YI DI JIANG, JIAN QING ZHENG v. 08-0123-ag
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
A071 567 912
A072 374 064
_______________________________________
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
1
Attorney General Eric H. Holder, Jr., is automatically substituted
as respondent where necessary.
02222011-1-28
_______________________________________
SHU WEN JIANG v. HOLDER, 08-2215-ag
A077 769 493
_______________________________________
XIU YU LIN v. HOLDER, 08-4086-ag
A099 599 270
_______________________________________
PENG FEI LIU v. HOLDER, 08-4590-ag
A073 767 870
_______________________________________
HONG WU v. HOLDER, 08-5398-ag
A094 814 759
_______________________________________
HUIZHEN LIN v. HOLDER, 08-5724-ag
A093 409 789
_______________________________________
RU-ZHEN ZHENG, A.K.A. LU JING JAN
v. HOLDER, 08-6125-ag
A072 460 978
_______________________________________
DUAN LIN v. HOLDER, 09-1088-ag
A094 824 731
_______________________________________
02222011-1-28 -2-
_______________________________________
RONG CHEN v. HOLDER, 09-1948-ag
A088 378 064
_______________________________________
ER CHEN v. HOLDER, 09-2800-ag
A079 069 093
_______________________________________
QING YAN LIN, FEI QIANG GAN v.
HOLDER, 09-3225-ag
A029 813 707
A029 813 706
_______________________________________
HONG MEI SHI v. HOLDER, 09-3285-ag
A099 928 309
_______________________________________
JINGRE WANG, A.K.A. JIN KE WANG,
A.K.A. JIN KAN WANG v. HOLDER, 09-3287-ag
A072 780 801
_______________________________________
MEI MEI CHEN, YULAN LIN v. HOLDER, 09-3445-ag
A070 893 461
A070 892 433
_______________________________________
LAN FANG HUANG v. HOLDER, 09-4004-ag
A077 122 682
_______________________________________
DAN YUN CHEN v. HOLDER, 09-4073-ag
A099 927 378
_______________________________________
SHU YING WU v. HOLDER, 09-4500-ag
A094 783 490
_______________________________________
02222011-1-28 -3-
_______________________________________
HUA ZHENG v. HOLDER, 09-4576-ag
A079 114 543
_______________________________________
CHENG JIAN ZHENG v. HOLDER, 09-4614-ag
A073 165 181
_______________________________________
XIAO YAN WU, A.K.A. XIAOYAN WU
v. HOLDER, 09-4883-ag
A075 955 399
_______________________________________
XIU ZHEN YU, HAI HUA WANG, HUI WANG v.
HOLDER, 09-4995-ag
A093 394 067
A093 394 068
A076 143 077
_______________________________________
YU HUA ZHANG v. HOLDER, 09-5036-ag
A093 412 580
_______________________________________
HUA QIN LIN, TIAN HUA CHEN v. HOLDER, 09-5094-ag
A099 927 231
A099 927 232
_______________________________________
GUI HUA LIN v. HOLDER, 10-91-ag
A070 505 399
_______________________________________
WEN JING XU, GUAN HUA LI v. HOLDER, 10-95-ag
A097 976 656
A097 976 657
_______________________________________
02222011-1-28 -4-
_______________________________________
LISHUANG PAN v. HOLDER, 10-517-ag
A094 797 951
_______________________________________
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-
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 claim that they fear
persecution because they have had one or more children in
violation of China’s population control program. For largely
Petitioner Ziquang Guo in Jia Jia Zhang, Ziquang Guo v.
2
Holder, Nos. 07-4697-ag (L), 09-4195-ag (Con); and the petitioners
in Shu Wen Jiang v. Holder, No. 08-2215-ag; Xiu Yu Lin v. Holder,
No. 08-4086-ag; Hong Wu v. Holder, No. 08-5398-ag; Hong Mei Shi v.
Holder, No. 09-3285-ag; and Shu Ying Wu v. Holder, No. 09-4500-ag.
02222011-1-28 -5-
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. Although the petitioners in Jian Hui Shao were
from Fujian Province, as are most of the petitioners here,
some petitioners3 are from Zhejiang, Guangdong, and Henan
Provinces. Regardless, as with the evidence discussed in Jian
Hui Shao, the evidence they have submitted relating to
Zhejiang, Guangdong, and Henan Provinces either does not
discuss forced sterilizations or references isolated incidents
of persecution of individuals who are not similarly situated
to the petitioners. See id. at 160-61, 171-72.
Some of the petitioners4 argue that the BIA erred by
The petitioners in Qing Yan Lin, Fei Qiang Gan v. Holder, No.
3
09-3225-ag; Jingre Wang v. Holder, No. 09-3287-ag; Xiu Zhen Yu, Hai
Hua Wang, Hui Wang v. Holder, No. 09-4995-ag; and Wen Jing Xu, Guan
Hua Li v. Holder, No. 10-95-ag.
The petitioners in Yi Di Jiang, Jian Qing Zheng v. Holder, No.
4
08-0123-ag; Shu Wen Jiang v. Holder, No. 08-2215-ag; Peng Fei Liu
v. Holder, No. 08-4590-ag; Ru-Zhen Zheng v. Holder, No. 08-6125-ag;
Duan Lin v. Holder, No. 09-1088-ag; Hong Mei Shi v. Holder, No. 09-
3285-ag; Jingre Wang v. Holder, No. 09-3287-ag; Lan Fang Huang v.
Holder, No. 09-4004-ag; Dan Yun Chen v. Holder, No. 09-4073-ag; Shu
Ying Wu v. Holder, No. 09-4500-ag; Hua Zheng v. Holder, No. 09-
4576-ag; Yu Hua Zhang v. Holder, No. 09-5036-ag; Hua Qin Lin, Tian
Hua Chen v. Holder, No. 09-5094-ag; Gui Hua Lin v. Holder, No. 10-
91-ag; Wen Jing Xu, Guan Hua Li v. Holder, No. 10-95-ag; and
LiShuang Pan v. Holder, No. 10-517-ag. We need not consider the
argument raised in Hong Wu v. Holder, No. 08-5398-ag, that the BIA
engaged in improper de novo review in deeming petitioner’s
application for asylum untimely filed because the BIA alternatively
adopted and affirmed the IJ’s reasonable finding that petitioner
failed to establish his eligibility for that form of relief.
02222011-1-28 -6-
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
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”).
02222011-1-28 -7-
Some of the petitioners5 argue that the agency applied an
incorrect burden of proof by requiring them to establish a
certainty of persecution. To the contrary, in those cases,
the agency explicitly applied the appropriate well-founded
fear of persecution standard. See Jian Hui Shao, 546 F.3d at
156.
Some of the petitioners6 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
The petitioners in Ru-Zhen Zheng v. Holder, No. 08-6125-ag;
5
Duan Lin v. Holder, No. 09-1088-ag; Xiu Zhen Yu, Hai Hua Wang, Hui
Wang v. Holder, No. 09-4995-ag; and Gui Hua Lin v. Holder, No. 10-
91-ag.
The petitioners in Xiu Yu Lin v. Holder, No. 08-4086-ag; Hong
6
Wu v. Holder, No. 08-5398-ag; Duan Lin v. Holder, No. 09-1088-ag;
Hong Mei Shi v. Holder, No. 09-3285-ag; Jingre Wang v. Holder, No.
09-3287-ag; Dan Yun Chen v. Holder, No. 09-4073-ag; Shu Ying Wu v.
Holder, No. 09-4500-ag; Hua Zheng v. Holder, No. 09-4576-ag; Xiao
Yan Wu v. Holder, No. 09-4883-ag; Xiu Zhen Yu, Hai Hua Wang, and
Hui Wang v. Holder, No. 09-4995-ag; Yu Hua Zhang v. Holder, No. 09-
5036-ag; and Hua Qin Lin, Tian Hua Chen v. Holder, No. 09-5094-ag.
02222011-1-28 -8-
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
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.
In Rong Chen v. Holder, No. 09-1948-ag and Gui Hua Lin v.
Holder, No. 10-91-ag, the BIA did not err in summarily denying
petitioners’ claims for withholding of removal or CAT relief
based on their failure to demonstrate their eligibility for
asylum because the claims shared the same factual predicates.
See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). In
Er Chen v. Holder, No. 09-2800-ag, the agency did not err in
declining to credit petitioner’s unauthenticated evidence in
light of an underlying adverse credibility determination. See
Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir.
2007). In Wen Jing Xu, Guan Hua Li v. Holder, No. 10-95-ag,
although the BIA may have erred in failing to explicitly
consider a letter from petitioners’ relative stating that
officials informed her that the family planning policy would
02222011-1-28 -9-
apply to the petitioners and that sterilizations are performed
by force, remand for consideration of this letter would be
futile because we can confidently predict that the BIA would
find insufficient this unsworn, second-hand account,
particularly in light of the BIA’s reasonable finding that the
country conditions evidence in the record did not indicate
that force is used to enforce the family planning policy in
petitioners’ home province. See Shunfu Li, 529 F.3d at 150;
cf. Jian Hui Shao, 546 F.3d at 159-61 (concluding that the BIA
does not err in finding that isolated or unattributed reports
of forced sterilizations are insufficient to demonstrate a
well-founded fear of persecution in light of significant
country conditions evidence to the contrary). In LiShuang Pan
v. Holder, No. 10-517-ag, we find no merit to petitioner’s
argument that he established his eligibility for relief based
on his use of a smuggler to depart China and enter the United
States illegally. See Mu Xiang Lin v. U.S. Dep’t of Justice,
432 F.3d 156, 159-60 (2d Cir. 2005).
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
02222011-1-28 -10-
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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
02222011-1-28 -11-