Gao v. Holder

10-1022-ag
Gao 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 12th day of January, two thousand twelve.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
_______________________________________
XIU QIN HUANG v. HOLDER,1 08-5530-ag
A077 958 016
_______________________________________
YAO LING WANG, XIAO GAO v. HOLDER, 10-291-ag
A088 378 231
A088 378 232
_______________________________________
XUE QIN LIN v. U.S. DEP’T OF JUSTICE,
ERIC H. HOLDER, JR., 10-321-ag
A099 083 219
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder, Jr., is automatically substituted
as respondent where necessary.
09262011-1-28
ZHONG LIN JIANG v. HOLDER, 10-460-ag
A099 697 058
_______________________________________
YUE JIN LIU v. HOLDER, 10-843-ag
A088 530 507
_______________________________________
QIN LIN v. HOLDER, 10-923-ag
A088 377 936
_______________________________________
YING WANG v. HOLDER, 10-947-ag
A088 378 141
_______________________________________
JIAN XIN GAO v. HOLDER, 10-1022-ag
A089 253 260
_______________________________________
XIU QIN CHEN v. HOLDER, 10-1031-ag
A098 480 124
_______________________________________
XIAO JING XIA, CHANG GUANG DONG
v. HOLDER, 10-1036-ag
A098 973 227
A098 902 360
_______________________________________
YIN YING CAO v. HOLDER, 10-1171-ag
A099 927 142
_______________________________________
MEI RU LIN v. HOLDER, 10-1268-ag
A098 279 231
___________________________
XIU FANG CHEN, A.K.A. JIN FANG CHEN
v. HOLDER, 10-1291-ag
A088 380 456
_______________________________________
09262011-1-28 -2-
MEI ZHU LIN v. HOLDER, 10-1292-ag
A093 396 857
_______________________________________
ZHU CHAO WANG v. HOLDER, 10-1293-ag
A089 253 373
_______________________________________
QIN PING LIN, FEI GUAN v. HOLDER, 10-1422-ag
A090 347 257
A090 347 258
_______________________________________
LIN FEI XIE v. HOLDER, 10-1424-ag
A099 683 978
_______________________________________
AI QIN SHI, A.K.A. XI LEI YANG, YONG
JIE LIU v. HOLDER, 10-1837-ag
A089 252 403
A089 252 404
_______________________________________
XIU JIANG HUANG v. HOLDER, 10-1895-ag
A088 524 966
_______________________________________
YU PING BAO v. HOLDER, 10-1902-ag (L);
A098 419 779 11-843-ag (Con)
_______________________________________
YONG CHEN v. HOLDER, 10-1998-ag
A070 898 117
_______________________________________
XUE M. ZHENG v. HOLDER, 10-2013-ag
A088 530 523
_______________________________________
XIAODAN XU v. HOLDER, 10-2249-ag
A099 424 976
_______________________________________
09262011-1-28 -3-
QIAO RONG LIN v. HOLDER, 10-2400-ag
A099 927 241
_______________________________________
SAIHU WANG v. HOLDER, 10-2656-ag
A096 808 755
_______________________________________
JIANDAN WU, ZHIXIANG CHENG v. HOLDER, 10-2797-ag
A088 552 425
A099 186 862
_______________________________________
QIU YUN NI v. HOLDER 10-3336-ag
A089 253 069
_______________________________________
UPON DUE CONSIDERATION of these petitions for review of
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
either affirming the decision of an immigration judge (“IJ”)
denying asylum and related relief or reversing the IJ’s
decision granting relief. Some of the petitioners2 also
challenge decisions of the BIA denying motions to remand or
reopen. The applicable standards of review are well-
2
The Petitioners in Zhong Lin Jiang v. Holder, No. 10-460-ag;
Qin Lin v. Holder, No. 10-923-ag; and Yu Ping Bao v. Holder, Nos.
10-1902-ag (L), 11-843-ag (Con).
09262011-1-28 -4-
established. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-
58, 168-69 (2d Cir. 2008).
Petitioners, all natives and citizens of China, sought
relief from removal based on their claims that they fear
persecution because they have had one or more children in
violation of China’s population control program. For largely
the same reasons as this Court set forth in Jian Hui Shao, 546
F.3d 138, we find no error in the agency’s decisions. See id.
at 158-72. While the petitioners in Jian Hui Shao were from
Fujian Province, as are most of the petitioners here, some
petitioners3 are from Zhejiang Province. Regardless, as with
the evidence discussed in Jian Hui Shao, the evidence they
have submitted relating to Zhejiang Province is deficient
either because it does not discuss forced sterilizations or
because it references isolated incidents of persecution of
individuals who are not similarly situated to the petitioners.
See id. at 160-61, 171-72.
3
The petitioners in Xiao Jing Xia, Chang Guang Dong v. Holder,
No. 10-1036-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Saihu Wang
v. Holder, No. 10-2656-ag; and Jiandan Wu, Zhixiang Cheng v.
Holder, No. 10-2797-ag.
09262011-1-28 -5-
Some of the petitioners4 argue that the BIA erred by
improperly conducting de novo review of determinations made by
an IJ. Many of them rely on a decision of the Third Circuit,
ruling, in the context of a claim under the Convention Against
Torture (“CAT”), that, although the BIA may review de novo
conclusions of law as to whether the facts found satisfy a
particular legal standard, it must employ a clear error
standard in reviewing findings of fact, including predictions
of future events. See Kaplun v. Attorney General, 602 F.3d
260 (3d Cir. 2010). Their claims lack merit. The BIA has not
reviewed de novo any of the IJs’ factual findings. Instead,
the BIA has concluded, on de novo review, that the factual
findings do not meet the legal standard of an objectively
reasonable fear of persecution, in these cases, a fear of
forced sterilization or economic persecution. That approach
is entirely consistent with the applicable regulation, 8
C.F.R. § 1003.1(d)(3). See Jian Hui Shao, 546 F.3d at 162-63(concluding that the BIA did not erroneously conduct de novo
4
The petitioners in Zhong Lin Jiang v. Holder, No. 10-460-ag;
Yue Jin Liu v. Holder, No. 10-843-ag; Yin Ying Cao v. Holder, No.
10-1171-ag; Xiu Fang Chen v. Holder, No. 10-1291-ag; Mei Zhu Lin v.
Holder, No. 10-1292-ag; Qin Ping Lin, Fei Guan v. Holder, No. 10-
1422-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Ai Qin Shi, Yong
Jie Liu v. Holder, No. 10-1837-ag; Xiu Jiang Huang v. Holder, No.
10-1895-ag; Yu Ping Bao v. Holder, Nos. 10-1902-ag (L), 11-843-ag
(Con); Yong Chen v. Holder, No. 10-1998-ag; and Qiu Yun Ni v.
Holder, No. 10-3336-ag.
09262011-1-28 -6-
review of the IJ’s factual findings by making “a legal
determination that, while [petitioners’] credible testimony
was sufficient to demonstrate a genuine subjective fear of
future persecution, more was needed to demonstrate the
objective reasonableness of that fear”).
Some of the petitioners5 argue that the BIA failed to give
sufficient consideration to the statement of Jin Fu Chen, who
alleged that he suffered forced sterilization after his return
to China based on the births of his two children in Japan. A
prior panel of this Court has 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 the remand in Zheng, the BIA has repeatedly
concluded that Jin Fu Chen’s statement does not support a
claim of a well-founded fear of persecution. Accordingly, it
is clear that further consideration of the statement in cases
5
The petitioners in Xiu Qin Huang v. Holder, No. 08-5530-ag;
Zhong Lin Jiang v. Holder, No. 10-460-ag; Yue Jin Liu v. Holder,
No. 10-843-ag; Xiao Jing Xia, Chang Guang Dong v. Holder, No. 10-
1036-ag; Yin Ying Cao v. Holder, No. 10-1171-ag; Xiu Fang Chen v.
Holder, No. 10-1291-ag; Mei Zhu Lin v. Holder, No. 10-1292-ag; Zhu
Chao Wang v. Holder, No. 10-1293-ag; Qin Ping Lin, Fei Guan v.
Holder, No. 10-1422-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Ai
Qin Shi, Yong Jie Liu v. Holder, No. 10-1837-ag; Xiu Jiang Huang v.
Holder, No. 10-1895-ag; Yong Chen v. Holder, No. 10-1998-ag; and
Qiao Rong Lin v. Holder, No. 10-2400-ag.
09262011-1-28 -7-
in which the IJ or the BIA failed to consider it would not
change the result. See Shunfu Li v. Mukasey, 529 F.3d 141,
150 (2d Cir. 2008). Furthermore, the agency’s conclusion
concerning the probative force of the statement was not in
error. Similarly, contrary to the argument raised in five of
these cases,6 it would be futile to remand for further
consideration of the statements of Mei Yun Chen and Jiangzhen
Chen, women claiming to have been forcibly sterilized in
Fujian Province for violating the family planning policy with
the birth of their second children in Romania and Japan
respectively, because the BIA has reasonably found that
neither woman is similarly situated to Chinese nationals
returning to China with U.S. citizen children. See id.; see
also Jian Hui Shao, 546 F.3d at 155, 161, 171-72.
We are without jurisdiction to consider two of the
petitions7 to the extent they seek review of the agency’s
pretermission of petitioners’ applications for asylum as
untimely. See 8 U.S.C. § 1158(a)(3).
6
In Yue Jin Liu v. Holder, No. 10-843-ag; Zhu Chao Wang v.
Holder, No. 10-1293-ag; Qin Ping Lin, Fei Guan v. Holder, 10-1422-
ag; Ai Qin Shi, Yong Jie Liu v. Holder, No. 10-1837-ag; and Yong
Chen v. Holder, No. 10-1998-ag.
7
The petitions in Qin Lin v. Holder, No. 10-923-ag; and Ying
Wang v. Holder, No. 10-947-ag.
09262011-1-28 -8-
In Xiu Qin Huang v. Holder, No. 08-5530-ag, the agency
reasonably relied on 2006 and 2007 U.S. Department of State
reports as opposed to the outdated 1997 Tantou Town Family
Planning Temporary Regulations petitioner submitted. See Jian
Hui Shao, 546 F.3d at 166. Moreover, it does not appear that
the Tantou Town Regulations were material to petitioner’s case
because the record evidence indicated that she resided and
feared persecution in Hunan Town and not Tantou Town.
Although petitioner refers to Tantou Town as her “hometown” in
her brief, unsworn statements in a brief are not evidence.
See Kulhawik v. Holder, 596 F.3d 296, 298 (2d Cir. 2009).
In Zhong Lin Jiang v. Holder, No. 10-460-ag, the BIA did
not err in declining to address the evidence petitioner
submitted for the first time on appeal. See 8 C.F.R. §
1003.1(d)(3)(iv); see also Matter of Fedorenko, 19 I. & N.
Dec. 57, 74 (BIA 1984). Regardless, the evidence submitted
was largely cumulative of the evidence in the record and not
materially distinguishable from the evidence discussed in Jian
Hui Shao. In Qin Lin v. Holder, No. 10-923-ag, the BIA
similarly did not err when it denied petitioner’s motion to
remand based on her failure to establish her prima facie
eligibility for relief. See Li Yong Cao v. U.S. Dep’t of
09262011-1-28 -9-
Justice, 421 F.3d 149, 156 (2d Cir. 2005); see also Jian Hui
Shao, 546 F.3d at 165, 172.
In Ying Wang v. Holder, No. 10-947-ag, the agency
reasonably found speculative the petitioner’s claimed fear
that she would face persecution based on her intent to join an
unregistered church in China. See Jian Xing Huang v. INS, 421
F.3d 125, 129 (2d Cir. 2005); see also Hongsheng Leng v.
Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). In Mei Ru Lin v.
Holder, No. 10-1268-ag, we do not consider petitioner’s
unexhausted past persecution claim. See Foster v. INS, 376
F.3d 75, 78 (2d Cir. 2004). In Zhu Chao Wang v. Holder, No.
10-1293-ag, the IJ did not abuse his discretion by declining
to admit petitioner’s late-filed evidence because that
evidence pre-dated the hearing at which he closed the record.
See Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008). In Yu
Ping Bao v. Holder, Nos. 1902-ag (L), 11-843-ag (Con), the BIA
did not err in finding that the petitioner failed to establish
her prima facie eligibility for relief based on her newly
commenced practice of Falun Gong in the United States because
she did not submit evidence that authorities in China are
aware of or likely to become aware of her activities in the
United States. See Hongsheng Leng, 528 F.3d at 143.
09262011-1-28 -10-
Finally, in Jiandan Wu, Zhixiang Cheng v. Holder, No. 10-
2797-ag, petitioners assert the BIA, in ruling that they
failed to satisfy the exceptional and extremely unusual
hardship requirement, erroneously minimized the impact their
removal would have on their U.S. citizen children. The
contention is both ineffective and moot. It is ineffective
because the challenged decision was discretionary and did not
involve a question of law or constitutional claim; our court
is therefore without jurisdiction to review it. See Mendez v.
Holder, 566 F.3d 316, 319-23 (2d Cir. 2009) (citing 8 U.S.C.
§ 1252(a)(2)(B); Barco-Sandoval v. Gonzales, 51 6 F.3d 35,
39 (2d Cir. 2008). The contention is in addition moot because
the agency also dispositively denied cancellation of removal,
which decision petitioners have not challenged (and which we,
in any event, would lack jurisdiction to review because it was
a discretionary decision not involving a question of law or
constitutional claim. See id.).
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
09262011-1-28 -11-
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
09262011-1-28 -12-