Sai Ren Jiang v. Holder

07-4129-ag
Jiang v. Holder
BIA
Brennan, IJ
A072 798 563
A079 301 419
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 11 th day of May, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 SAI REN JIANG, LAN XIANG JIANG,
14 Petitioners,
15
16 v. 07-4129-ag
17 NAC
18 ERIC H. HOLDER, JR., 1 UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONERS: David X. Feng, New York, New York.
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric. H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR RESPONDENT: Jeffrey S. Bucholtz, Acting
2 Assistant Attorney General; Aviva L.
3 Poczter, Senior Litigation Counsel;
4 David Schor, Trial Attorney, Office
5 of Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED, that the petition for review
12 is DENIED.
13 Sai Ren Jiang and Lan Xiang Jiang, natives and citizens
14 of the People’s Republic of China, seek review of an August
15 30, 2007, order of the BIA dismissing their appeal of the
16 December 28, 2005, decision of Immigration Judge (“IJ”) Noel
17 A. Brennan, which ordered the respondents removed to the
18 People’s Republic of China. In re Sai Ren Jiang, Lan Xiang
19 Jiang, Nos. A072 798 563/A079 301 419 (B.I.A. Aug. 30,
20 2007). We assume the parties’ familiarity with the
21 underlying facts and procedural history in this case.
22 I. Scope and Standard of Review
23 As a preliminary matter, we must decide whether our
24 jurisdiction to review the BIA’s 2007 order allows us to
25 address the findings it made in its 2005 order. We conclude
26 that it does. This Court may review only “final” orders of
2
1 removal in immigration cases. See 8 U.S.C. § 1252(a)(1).
2 Moreover, we treat each petition for review as challenging
3 only the BIA order from which it was timely filed. See
4 Stone v. INS, 514 U.S. 386, 405 (1995). Nevertheless, the
5 BIA’s “varying techniques” in reviewing prior agency
6 decisions “affect the scope of [our appellate] review,”
7 Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006), such
8 that when the BIA adopts and supplements an earlier agency
9 decision, for example, we review the earlier decision as
10 supplemented by the BIA’s decision, see Dong Gao v. BIA, 482
11 F.3d 122, 125 (2d Cir. 2007).
12 Here, the BIA incorporated its 2005 order by reference
13 in its 2007 order. Indeed, in its 2007 order, the BIA
14 stated that its 2005 order “was not artfully drafted,” and
15 that it wished to “clarify” its finding that Petitioners
16 “did not show a well-founded fear of persecution.” Our
17 determination is further supported by the limited purpose of
18 the BIA’s remand in 2005, which was only to allow
19 Petitioners to apply for voluntary departure and for the IJ
20 to enter a removal order in the first instance. Given this
21 limited purpose, it was not necessary for the BIA in 2007 to
22 revisit its earlier findings denying Petitioners’ asylum and
3
1 withholding of removal applications. To the extent the BIA
2 sua sponte “clarified” its 2005 order, we are satisfied that
3 it intended to incorporate its earlier decision by
4 reference. 2 Accordingly, we review the BIA’s 2007 order as
5 incorporating the 2005 order by reference. See Dong Gao,
6 482 F.3d at 125 .
7 II. Asylum & Withholding of Removal
8 As the government correctly asserts, Petitioners argue
9 only that the BIA failed to consider the “Xiapu County
10 Family Planning Stipulation” and “Verification,” which, they
11 argue, demonstrate that their United States-born children
12 would be counted for family planning purposes . However, the
13 BIA considered the Xiapu County documents in its 2005 order,
14 finding that they were ambiguous, that they did not suggest
15 that Petitioners would be sterilized for having two
2
We note that although we previously held this
petition for review in abeyance pending this Court’s
decision in Alibasic, that decision established only that
we would have had jurisdiction to consider the BIA’s 2005
order had Petitioners filed a petition for review. See
Alibasic v. Mukasey, 547 F.3d 78, 83-84 (2d Cir. 2008)
(holding that “a BIA order denying relief from removal
and remanding for the sole purpose of considering
voluntary departure is a final order of removal that this
Court has jurisdiction to review”). It does not resolve
the scope of review issue in this case, namely whether
this Court can consider the BIA’s 2005 order by virtue of
its jurisdiction over the BIA’s 2007 order.
4
1 children, and that they were not authenticated. Therefore,
2 Petitioners’ argument is unavailing.
3 In any event, the BIA and this Court have reviewed
4 evidence similar to the Xiapu County documents, and we have
5 found no error in the BIA’s conclusion that such evidence
6 does not demonstrate an alien’s prima facie eligibility for
7 relief. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
8 Cir. 2008) ; Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209,
9 214 & n.5 (BIA 2010) (holding that unsigned, unauthenticated
10 documents, from a “Street Resident Committee” and “Villager
11 Committee,” that fail to identify the authors, are entitled
12 to minimal weight, especially when the documents were
13 allegedly obtained from the authorities specifically for the
14 purpose of the hearing on the applicant’s behalf).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of
17 removal that the Court previously granted in this petition
18 is VACATED, and any pending motion for a stay of removal in
19 this petition is DISMISSED as moot. Any pending request for
20 oral argument in this petition is DENIED in accordance with
21 Federal Rule of Appellate Procedure 34(a)(2), and Second
22 Circuit Local Rule 34.1(b).
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
25
26
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