Hua Hui Chen v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPT 22, 2008
THOMAS K. KAHN
No. 07-14248
CLERK
D. C. Docket No. A73-767-298
HUA HUI CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of a Decision of the
Board of Immigration Appeals
(September 22, 2008)
Before DUBINA, HULL and FAY, Circuit Judges.
PER CURIAM:
Petitioner Hua Hui Chen (“Chen”) petitions this court for review of an order
of the Board of Immigration Appeals (“BIA”) denying her motion to reopen
removal proceedings and to file a successive asylum application.
“We review the denial of a motion to reopen removal proceedings for abuse
of discretion.” Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007); Ali v.
U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). We review legal
determinations de novo. Li, 488 F.3d at 1374.
After reviewing the record, reading the parties’ briefs, and having the
benefit of oral argument, we deny the petition for review because, even if Chen
were permitted to reopen or to file a successive application independent of a
motion to reopen, Chen’s claims fail on the merits. Based on Chen’s testimony
and the evidence presented, we conclude that Chen has not shown a well-founded
fear of future persecution. Although generally this court should remand asylum
eligibility issues to the BIA, see INS v. Orlando Ventura, 537 U.S. 12, 16-17, 123
S. Ct. 353, 355-56 (2002), remand is unnecessary where “the result of a remand to
the [BIA] is a foregone conclusion such that remand would amount to nothing
more than a mere formality.” Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir.
2007), quoted in Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1330-31 (11th Cir. 2007)
(determining that no remand was required to address on the merits petitioner’s
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motion for reconsideration and stating that the petitioner’s “arguments offered
nothing more than reiteration of her assertions in her [original] motion” that the
BIA had already rejected).
Here, the BIA’s opinion confirms that it did not believe the evidence
established a well-founded fear of future persecution. Chen’s successive asylum
claim arises from her violation of China’s one-child family planning policy, and
the BIA expressly stated that Chen “has not demonstrated that she will be
sterilized or otherwise subjected to coercive population control measures due to
the birth of three foreign-born children.” Thus, we conclude that this case falls
within the rare circumstances making remand unnecessary because even if the BIA
were to reopen or to consider the successive application, Chen would not be
entitled to relief.
PETITION FOR REVIEW DENIED.
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