Zhu v. Holder ( 2011 )

09-4711-ag
Zhu 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 15th day of April, two thousand eleven.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
____________________________________
YAN YUN LIN v. HOLDER, 1 08-1525-ag
A095 461 815
____________________________________
JUN QIN KE v. HOLDER, 08-4139-ag
A073 661 093
____________________________________
XING QIANG YANG, A.K.A. XING 08-5000-ag
YONG YANG v. HOLDER,
A076 969 048
____________________________________
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
1
Attorney General Eric. H. Holder, Jr., is automatically substituted
where necessary.
12132010-1-34
____________________________________
XIU QIN LIN, A.K.A. XIU QING 08-6266-ag
LIN v. HOLDER,
A077 322 260
____________________________________
DAO-SHU LIN v. HOLDER, 09-0167-ag
A072 485 388
____________________________________
XIU ZHU v. HOLDER, 09-0550-ag
A077 660 225
____________________________________
RUIYU WANG v. HOLDER, 09-1016-ag
A096 263 970
____________________________________
GUO YING QIU v. HOLDER, 09-1035-ag
A076 027 787
____________________________________
JINXIU ZHENG v. HOLDER, 09-1877-ag
A097 478 685
____________________________________
MING TENG ZHANG v. HOLDER, 09-2827-ag
A072 373 970
____________________________________
MING YING ZHENG, KOK POH LIN 09-2853-ag
v. HOLDER,
A073 045 702
A029 882 583
____________________________________
DE YONG CHEN v. HOLDER, 09-2855-ag
A073 570 843
____________________________________
12132010-1-34 -2-
____________________________________
XIU YING WEI v. HOLDER, 09-2967-ag
A077 283 089
____________________________________
ZHEN GUANG JIANG v. HOLDER, 09-3083-ag
A073 611 310
____________________________________
LIN JIQING v. BCIS, 09-3206-ag
A029 790 914
____________________________________
YAN YING LI, A.K.A. YAN 09-3858-ag
JUAN LI v. BCIS,
A079 097 331
____________________________________
JIANG DENG, A.K.A. XIAO 09-3891-ag
DONG JIANG v. HOLDER,
A072 484 162
____________________________________
XIN YING ZHENG, A.K.A. 09-4219-ag
XINYING ZHENG v. HOLDER,
A079 407 995
____________________________________
CHUN-HUI HUANG, A.K.A. 09-4220-ag
CHUNHUI HUANG v. HOLDER,
A070 579 857
____________________________________
SHUAI ZHENG v. HOLDER 09-4374-ag
A070 311 881
____________________________________
XUE FENG HUANG v. BCIS, 09-4613-ag
A073 552 797
____________________________________
12132010-1-34 -3-
____________________________________
TIANGONG ZHENG, A.K.A. TIAN 09-4644-ag
GONG ZHENG v. HOLDER,
A078 731 678
____________________________________
LI QING GUO v. HOLDER, 09-4648-ag
A077 550 863
____________________________________
YI JIAN WANG v. HOLDER, 09-4649-ag
A073 583 147
____________________________________
BO KUN ZHU v. HOLDER, 09-4711-ag
A073 134 414
____________________________________
XIU ZHEN LIN v. HOLDER, 09-4712-ag
A099 082 786
____________________________________
MEI RONG CHEN v. HOLDER, 09-4791-ag
A077 007 626
____________________________________
JING LI v. HOLDER, 09-4821-ag
A073 625 185
____________________________________
YAN CHEN v. HOLDER, 09-4837-ag
A073 620 487
____________________________________
XIAO LI LIU v. HOLDER, 09-4905-ag
A077 297 907
____________________________________
ZHANG BING CHEN v. HOLDER, 09-4936-ag
A078 400 265
____________________________________
12132010-1-34 -4-
____________________________________
SUZHU ZHAO, A.K.A. SU ZHU 09-5113-ag
ZHAO v. HOLDER
A095 369 241
____________________________________
TAN LAN CHI, A.K.A. DAN LING 09-5262-ag
SHI v. HOLDER,
A073 598 096
____________________________________
SHI YANG HUANG v. HOLDER, 10-0277-ag
A077 281 562
____________________________________
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.
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 Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).
12132010-1-34 -5-
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 petitioners2 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.
Some of the petitioners3 argue that the agency applied an
incorrect burden of proof by requiring them to establish more
2
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.
3
The petitioners in Xing Qiang Yang v. Holder, No. 08-5000-ag;
Xin Ying Zheng v. Holder, No. 09-4219-ag; Chun-Hui 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.
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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 (1988).
Some of the petitioners4 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, No. 07-3970-ag (2d Cir. Jan. 15,
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
4
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; Chun-Hui 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.
12132010-1-34 -7-
the BIA’s summary consideration of that statement in these
cases. See Jian Hui Shao, 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.
Eight of the petitioners5 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
5
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.
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the extent that the BIA declined to credit some of the
petitioners’6 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 143, 146-47 (2d Cir. 2007).
Finally, one of the petitioners7 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
6
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.
7
The petitioner in Mei Rong Chen v. Holder, No. 09-4791-ag.
12132010-1-34 -9-
motions to reopen. See id. at 157.
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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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