Xue Qing Lin v. Holder ( 2010 )

09-3510-ag
Lin v. Holder
BIA
Gordon-Uruakpa, IJ
A099 682 946
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.
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 9 th day of August, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _________________________________________
12
13 XUE QING LIN,
14 Petitioner,
15
16 v. 09-3510-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Norman Kwai Wing Wong, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Civil Division; Shelley R.
28 Goad, Assistant Director; Kristin A.
29 Moresi, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Xue Qing Lin, a native and citizen of the
6 People’s Republic of China, seeks review of the July 24,
7 2009, order of the BIA, affirming the November 9, 2007
8 decision of Immigration Judge (“IJ”) Vivienne E. Gordon-
9 Uruakpa, which denied her motion to reconsider, and denying
10 her motion to remand. In re Xue Qing Lin, No. A099 682 946
11 (B.I.A. July 24, 2009), aff’g No. A099 682 946 (Immig. Ct.
12 N.Y. City Nov. 9, 2007). We assume the parties’ familiarity
13 with the underlying facts and procedural history of the
14 case.
15 I. Motion to Reconsider
16 We review the agency’s denial of a motion to reconsider
17 for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233
18 (2d Cir. 2005) (per curiam). Here, the BIA did not abuse
19 its discretion in affirming the IJ’s denial of Lin’s motion
20 to reconsider because the IJ’s underlying decision contained
21 no errors of fact or law. See 8 C.F.R. § 1003.2(b)(1). In
22 denying Lin’s claim for relief based on the birth of her
2
1 children in the United States, the IJ properly relied on the
2 2007 State Department Profile of Asylum Claims and Country
3 Conditions to find that “children born abroad if not
4 registered as permanent residents in China are not
5 considered as permanent residents of China and, therefore,
6 are not considered against the number of children allowed
7 under China’s family planning laws,” IJ Oral Decision, Aug.
8 21, 2007, at 9. See Tu Lin v. Gonzales, 446 F.3d 395, 400
9 (2d Cir. 2006) (noting that State Department reports are
10 probative). Moreover, we have previously reviewed the
11 agency’s analysis of documents similar to the ones Lin
12 submitted and concluded that the agency did not err in
13 finding that they do not demonstrate an alien’s prima facie
14 eligibility for asylum, i.e., a well-founded fear of forced
15 abortion or sterilization. See Jian Hui Shao, 546 F.3d 138,
16 158-73 (2d Cir. 2008); see also Wei Guang Wang v. BIA, 437
17 F.3d 270, 274-76 (2d Cir. 2006). Contrary to Lin’s
18 arguments, a reasonable fact-finder would not be compelled
19 to conclude that the IJ ignored any material evidence that
20 she submitted. See Xiao Ji Chen v. U.S. Dep’t of Justice,
21 471 F.3d 315, 337 n.17 (2d Cir. 2006). Accordingly, the BIA
22 did not abuse its discretion in affirming the IJ’s denial of
3
1 Lin’s motion to reconsider. Kaur, 413 F.3d at 233.
2 II. Motion to Remand
3 We also review the denial of a motion to remand for
4 abuse of discretion. See Li Yong Cao v. U.S. Dep’t of
5 Justice, 421 F.3d 149, 156-57 (2d Cir. 2005). The BIA did
6 not abuse its discretion in finding that Lin failed to
7 demonstrate that her practice of Christianity established
8 her prima facie eligibility for asylum because she failed to
9 provide any evidence indicating that the Chinese government
10 is aware or is likely to become aware of her religious
11 practice. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
12 (2d Cir. 2008) (per curiam). Furthermore, she failed to
13 demonstrate a pattern or practice of persecution of a group
14 of persons similarly situated to her. See 8 C.F.R. §§
15 208.13(b)(2), 208.16(b)(2)(iii); Mufied v. Mukasey, 508 F.3d
16 88, 91 (2d Cir. 2007). Accordingly, the BIA acted within
17 its discretion in denying Lin’s motion to remand. Kaur, 413
18 F.3d at 233.
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
23 this petition is DISMISSED as moot. Any pending request for
4
1 oral argument in these petitions is DENIED in accordance
2 with Federal Rule of Appellate Procedure 34(a)(2), and
3 Second Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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