Chunxun Li v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 17, 2015
Elisabeth A. Shumaker
Clerk of Court
CHUNXUN LI,
Petitioner,
v. No. 14-9551
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges.
Chunxun Li, a Chinese national, seeks review of a Board of Immigration
Appeals (BIA) decision affirming an immigration judge’s (IJ) final order of removal.
We dismiss the petition in part for lack of jurisdiction and deny it in part for the
reasons stated below.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I
Li entered this country illegally in 1997. In 2008, the government charged him
with being present in the United States without proper admission or parole.
See 8 U.S.C. § 1182(a)(6)(A)(i). Li conceded the charge but applied for asylum,
restriction on removal, protection under the Convention Against Torture (CAT), and
cancellation of removal. In support of his applications, Li claimed he had a
well-founded fear of persecution because of China’s family-planning and forced
sterilization policies. Before the IJ, Li explained he had three children, all of whom
are U.S. citizens. After he arrived in the United States, he married a woman and
together they had two daughters. His wife passed away, however, compelling him to
send his daughters to live with his mother in China for several years. In the
meantime, Li stayed in the United States and fathered a third child, a son, with
another woman. This woman cared for their son and his daughters, who had since
returned to the United States. If removed to China, Li fears he will face the prospect
of forced sterilization, menial work, and difficulty educating his children.
After considering this and other evidence, including a 2007 State Department
country report on China, the IJ concluded Li was not entitled to relief. According to
BIA decisions parents who return to China with children born elsewhere lack a
well-founded fear of persecution because China has no policy of forced sterilization
for such individuals. As to cancellation of removal, Li failed to show how his
children would suffer exceptional or extremely unusual hardship if he was removed
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to China. The older daughters had spent most of their lives in China and were able to
obtain adequate education and Li failed to show how his son would experience
hardship.
Upon review the BIA relied on its prior decisions determining forced
sterilization was not imposed on parents with circumstances similar to Li’s. Persons
returning to China with U.S.-born children generally face only fines and other
economic penalties. Thus Li’s circumstances, it concluded, did not support the
well-founded fear of forced sterilization or other persecution necessary for asylum.
A fortiori, Li failed to meet the higher standards required for restriction on removal
and CAT relief. In upholding the refusal to cancel removal, the BIA agreed with the
IJ: Li failed to show the requisite hardship because his older daughters had spent
most of their lives in China, where his family had contributed to their education
expenses. Also, he failed to elaborate on the hardship facing his son.
In summary, the BIA affirmed the IJ’s decision in toto. Li now seeks our
review of his case.
II
We first define the scope of our review. Where, as here, the BIA issues a brief
order affirming the IJ’s decision, “we will not affirm on grounds raised in the IJ
decision unless they are relied upon by the BIA in its affirmance.” Uanreroro v.
Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). We review the BIA’s legal
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conclusions de novo, and its factual determinations for substantial evidence.
See Razkane v. Holder, 562 F.3d 1283, 1287 (10th Cir. 2009).
Although we retain jurisdiction to review constitutional claims and questions
of law raised upon a petition for review, 8 U.S.C. § 1252(a)(2)(D), we lack
jurisdiction to review the agency’s discretionary denial of cancellation of removal,
8 U.S.C. § 1252(a)(2)(B)(i); Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1148
(10th Cir. 2005). Specifically, we lack jurisdiction to review the agency’s
discretionary determination that an alien has failed to show exceptional and
extremely unusual hardship as required by 8 U.S.C. § 1229b(b)(1)(D). See Alzainati
v. Holder, 568 F.3d 844, 848 (10th Cir. 2009). Here, the BIA affirmed the denial of
cancellation of removal solely because Li failed to satisfy the proof of hardship
requirement. Because we lack jurisdiction to review its discretionary determination,
we dismiss the petition for review to the extent it quarrels with the denial of
cancellation of removal.
Li does not advance any argument challenging the denial of restriction on
removal or CAT protection. Although he briefly mentions these applications for
relief in his summary of the arguments, see Pet’r Br. at 6-7, such passing references
fail to preserve an issue for review. See Bronson v. Swensen, 500 F.3d 1099, 1104
(10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not
raised, or are inadequately presented, in an appellant’s opening brief.”).
Consequently, we decline to consider the agency’s denial of restriction on removal or
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CAT relief. See Rodas-Orellana v. Holder, 780 F.3d 982, 998 (10th Cir. 2015)
(applying waiver rule where alien failed to challenge agency determination in
opening brief).
This leaves only the denial of Li’s asylum claim. To establish eligibility for
asylum, an alien must show he “suffered past persecution or has ‘a well-founded fear
of future persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.’” Tulengkey v. Gonzales, 425 F.3d 1277,
1280 (10th Cir. 2005) (footnote and brackets omitted) (quoting 8 U.S.C.
§ 1101(a)(42)(A)). “[A] person who has a well[-]founded fear that he or she will be
forced to [abort a pregnancy or to undergo involuntary sterilization] shall be deemed
to have a well[-]founded fear of persecution on account of political opinion.”
8 U.S.C. § 1101(a)(42). A well-founded fear of persecution “must be both
subjectively genuine and objectively reasonable.” Tulengkey, 425 F.3d at 1281.
Li first contends he is prima facie eligible for asylum because he submitted
credible testimony and other evidence showing a well-founded fear of persecution.
But this argument simply asks us to reweigh the evidence so that we might resolve
the matter differently. That is beyond our ken. See Sidabutar v. Gonzales, 503 F.3d
1116, 1125 (10th Cir. 2007). We do not review arguments merely claiming the
evidence “‘supports a different outcome.’” Alzainati, 568 F.3d at 850-51 (quoting
Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007)).
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Li also faults the BIA for refusing to consider new evidence—specifically, a
2008 State Department country report on China “and a 2009 decision . . . from a
Chinese governing body,” Pet’r Br. at 14—both of which Li attempted to submit to
the BIA during his administrative appeal. But the BIA was under no obligation to
accept this material because it “operates as an appellate body and its practice
therefore is not to accept a tender of evidence . . . but instead, if it thinks the new
evidence might change the outcome, to remand the case to the [IJ].”
Reyes-Hernandez v. INS, 89 F.3d 490, 494 (7th Cir. 1996). Li made no motion to
remand, and the BIA was under no obligation to consider the new evidence in the
first instance.
Finally, Li says the BIA selectively relied on only unfavorable portions of the
2007 country report, without discussing other aspects of the same report more
favorable to him. We have no jurisdiction to consider this argument because Li
raises it solely to challenge the agency’s discretionary determination that he failed to
establish hardship for purposes of cancellation of removal. See Pet’r Br. at 15-17
(discussing portions of the 2007 country report that purportedly support claim of
hardship). Yet even if we could consider this argument, “the BIA is not required to
discuss every piece of evidence when it renders a decision,” Hadjimehdigholi v. INS,
49 F.3d 642, 648 n.2 (10th Cir. 1995).
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III
The petition for review dismissed in part (as discussed) for lack of jurisdiction.
We deny relief in all other respects.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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