Filed: Feb. 07, 2012
Latest Update: Feb. 22, 2020
Summary: 09-3456-ag Chen v. Holder BIA Sichel, IJ A099 683 479 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 N
Summary: 09-3456-ag Chen v. Holder BIA Sichel, IJ A099 683 479 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 NO..
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09-3456-ag
Chen v. Holder
BIA
Sichel, IJ
A099 683 479
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 7th day of February, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 _______________________________________
13
14 FEN WANG CHEN,
15 Petitioner,
16
17 v. 09-3456-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Richard Tarzia, Belle Mead, New
25 Jersey.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Terri J. Scadron, Assistant
29 Director; Lauren Ritter, Law Clerk,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that both the
4 government’s motion to remand and the petition for review
5 are DENIED.
6 Petitioner Fen Wang Chen, a native and citizen of
7 China, seeks review of a July 23, 2009, decision of the BIA
8 reversing Immigration Judge (“IJ”) Helen J. Sichel’s January
9 15, 2008, decision granting his application for asylum. In
10 re Fen Wang Chen, No. A099 683 479 (B.I.A. July 23, 2009),
11 aff’g No. A099 683 479 (Immig. Ct. N.Y. City Jan. 15, 2008).
12 We assume the parties’ familiarity with the underlying facts
13 and procedural history of this case.
14 Under the circumstances of this case, we have reviewed
15 the BIA’s decision as the final agency determination. See
16 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
17 applicable standards of review are well-established. See
18 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey,
19
546 F.3d 138, 157-58 (2d Cir. 2008).
20 The government moves to remand the petition for review
21 to the BIA for reevaluation in light of our discussion of
22 the BIA’s standard of review in De La Rosa v. Holder, 598
23 F.3d 103 (2d Cir. 2010). We find that remand in this
2
1 instance would be futile. See id. at 108. The agency’s
2 regulations provide that the BIA “will not engage in de novo
3 review of findings of fact determined by an immigration
4 judge [and that f]acts determined by the immigration judge,
5 . . . shall be reviewed only to determine whether the
6 findings of the immigration judge are clearly erroneous.”
7 8 C.F.R. § 1003.1(d)(3)(i). The BIA may, however, “review
8 questions of law, discretion, and judgment . . . de novo”
9 and may take “administrative notice of commonly known facts
10 such as current events or the contents of official
11 documents.” 8 C.F.R. § 1003.1(d)(3)(ii), (iv). In De La
12 Rosa, we found that the BIA failed to comply with these
13 regulations when it “articulated its standard of review as
14 that of determining ‘the weight of the evidence’ . . .[,
15 which] is often equated across the circuits with a de novo
16 inquiry into the preponderance of the evidence.”
598 F.3d
17 at 107-08. We further noted that the BIA appeared to make
18 its own factual findings that were “demonstratively at odds
19 with factual findings made by the IJ.”
Id. at 107.
20 Here, unlike in De La Rosa, the BIA articulated the
21 proper standard of review, noting that it “review[s] the
22 Immigration Judge’s findings of fact . . . under the
3
1 ‘clearly erroneous’ standard, while [it] reviews de novo
2 questions of law, discretion, and judgment.” See 8 C.F.R.
3 § 1003.1(d)(3). Moreover, unlike in De La Rosa, the BIA did
4 not make its own factual findings at odds with the IJ’s
5 factual findings, but reasonably relied on precedential
6 decisions and country conditions evidence to conclude that,
7 as a matter of law, Chen’s evidence failed to demonstrate
8 the objective reasonableness of his claimed fear of
9 persecution. See 8 C.F.R. § 1003.1(d)(3); see also Jian Hui
10 Shao, 546 F.3d at 162. For instance, in evaluating the
11 evidence, the IJ found that Chen’s case was distinguishable
12 from the BIA’s precedential decision in Matter of J-W-S-, 24
13 I. & N. Dec. 185 (BIA 2007), and that he was eligible for
14 asylum, because he submitted evidence demonstrating that he
15 would be subject to the mandatory sterilization requirement
16 of China’s family planning policy. In reviewing that
17 decision, the BIA found that the IJ erred as a matter of law
18 in determining that Chen’s case was distinguishable from
19 Matter of J-W-S- because, even if, as the IJ found, Chen
20 would be subject to the family planning policy’s mandatory
21 sterilization requirement, he failed to show that mandatory
22 sterilizations are carried out by “physical force or other
4
1 means that would amount to persecution.” Matter of J-W-S-,
2 24 I. & N. Dec. at 192; see also Jian Hui Shao, 546 F.3d at
3 165, 172. Thus, our decision in De La Rosa would not change
4 the BIA’s evaluation of the IJ’s decision on remand, and the
5 government’s motion to remand is denied. See De La Rosa,
6 598 F.3d at 107-08; see also Jian Hui
Shao, 546 F.3d at 162-
7 63.
8 With respect to Chen’s claimed fear of persecution in
9 China on account of the birth of his two U.S. citizen
10 children, we find that his arguments are largely foreclosed
11 by our decision in Jian Hui Shao,
546 F.3d 138. Among the
12 documents Chen argues established his eligibility for relief
13 is the statement of Jin Fu Chen, who alleged that he
14 suffered forced sterilization after his return to China on
15 account of the births of his two children in Japan. A prior
16 panel of this Court remanded a petition making a similar
17 claim so that Jin Fu Chen’s statement (which was submitted
18 to the BIA after a remand) could be considered by the IJ.
19 See Zheng v. Holder, No. 07-3970-ag (2d Cir. Jan. 15, 2010).
20 Since the remand in Zheng, the BIA has repeatedly concluded
21 that Jin Fu Chen’s statement does not support a claim of a
22 well-founded fear of persecution. Accordingly, it is clear
23 that further consideration of the statement in this case
5
1 would not change the result. See Shunfu Li v. Mukasey, 529
2 F.3d 141, 150 (2d Cir. 2008). Furthermore, we do not find
3 that the BIA’s conclusions in other cases concerning the
4 probative force of Jin Fu Chen’s statement involved any
5 error of law.
6 For the foregoing reasons, both the government’s motion
7 to remand and the petition for review are DENIED. As we
8 have completed our review, any stay of removal that the
9 Court previously granted in this petition is VACATED, and
10 any pending motion for a stay of removal in this petition is
11 DISMISSED as moot. Any pending request for oral argument in
12 this petition is DENIED in accordance with Federal Rule of
13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
14 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
6
