Filed: Mar. 22, 2012
Latest Update: Feb. 22, 2020
Summary: 10-2653-ag Jin v. Holder BIA Hom, IJ A072 214 235 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 NOTAT
Summary: 10-2653-ag Jin v. Holder BIA Hom, IJ A072 214 235 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 NOTATI..
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10-2653-ag
Jin v. Holder
BIA
Hom, IJ
A072 214 235
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 22nd day of March, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RALPH K. WINTER,
9 ROSEMARY S. POOLER,
10 Circuit Judges.
11 _______________________________________
12
13 SONG YIENG JIN,
14 Petitioner,
15
16 v. 10-2653-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Anthony P. Nicastro, Senior
27 Litigation Counsel; Andrew N.
28 O’Malley, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 the petition for
4 review is DENIED.
5 Song Yieng Jin, a native and citizen of the People’s
6 Republic of China, seeks review of a June 11, 2010, order of
7 the BIA denying his motion to remand and affirming
8 immigration judge (“IJ”) Sandy K. Hom’s August 18, 2008,
9 denial of his application for asylum, withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”). In re Song Yieng Jin, No. A072 214 235 (B.I.A.
12 June 11, 2010); aff’g No. A072 214 235 (Immig. Ct. N.Y. City
13 Aug. 18, 2008). We assume the parties’ familiarity with the
14 underlying facts and procedural history of this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s decisions. See Xue Hong Yang v.
17 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
18 The applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.
20 Holder,
562 F.3d 510, 513 (2d Cir. 2009).
21
22
23
2
1 I. Asylum, Withholding of Removal, and CAT Relief
2 Jin’s arguments regarding his eligibility for relief on
3 account of the birth of his two U.S. citizen children in
4 violation of China’s family planning policy are largely
5 foreclosed by our decision in Jian Hui Shao v. Mukasey, 546
6 F.3d 138 (2d Cir. 2008). The letter from Jin’s brother
7 claiming that he was forcibly sterilized in China following
8 the birth of his children was not material to Jin’s claim
9 because it did not document the forced sterilization of a
10 similarly situated individual, i.e. a Chinese national
11 returning to China with U.S. citizen children. See
id. at
12 160-61, 170-71. Moreover, the BIA did not inadequately
13 consider the evidence in the record. “[W]here the BIA has
14 given reasoned consideration to the petition, and made
15 adequate findings, it [need not] expressly parse or refute
16 on the record each individual argument or piece of evidence
17 offered by the petitioner.” Wei Guang Wang v. BIA,
437 F.3d
18 270, 275 (2d Cir. 2006) (internal quotation marks omitted).
19 The BIA also did not err in giving greater weight to
20 the background evidence in the record, including State
21 Department reports, than to the individualized documentary
22 evidence Jin submitted. See Jian Hui
Shao, 546 F.3d at 166,
3
1 171; see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471
2 F.3d 315, 342 (2d Cir. 2006) (finding that the weight
3 afforded to the applicant’s evidence in immigration
4 proceedings lies largely within the discretion of the
5 agency). Finally, Jin failed to demonstrate a reasonable
6 possibility that any fines imposed for the birth of his
7 children would cause him severe harm amounting to economic
8 persecution, as he did not submit any evidence documenting
9 his personal financial circumstances. See Matter of T-Z-,
10 24 I. & N. Dec. 163, 170-75 (B.I.A. 2007); see also Guan
11 Shan Liao v. U.S. Dep’t. of Justice,
293 F.3d 61, 70 (2d
12 Cir. 2002); Jian Hui
Shao, 546 F.3d at 161-62, 164 n.25.
13 II. Motion to Remand
14 Although Jin labeled his motion filed with the BIA a
15 motion to remand, we have held that a motion to remand that
16 “does not simply articulate the remedy sought on appeal,”
17 but rather “relies on newly available evidence is held to
18 the substantive requirements of a motion to reopen.” See Li
19 Yong Cao v. U.S. Dep’t of Justice,
421 F.3d 149, 156 (2d
20 Cir. 2005). Therefore, because Jin’s motion was accompanied
21 by new evidence supporting his claim that he would be
22 persecuted in China on account of his membership in the
4
1 China Democracy Party (“CDP”), the BIA properly analyzed it
2 under the standards applicable to a motion to reopen. Id.
3 Jin asserts that the BIA erred in finding that he
4 failed to demonstrate that the letter from his brother
5 indicating that Chinese police were aware of his CDP
6 activities, as well as his certificate of graduation from
7 the China Democracy Movement Leadership School, were
8 unavailable at the time of his hearings before the IJ.
9 However, the certificate of graduation was not material
10 because it was merely cumulative of the information he
11 submitted indicating that he had been a member of the CDP
12 since April 2008. See 8 C.F.R. § 1003.2(c)(1) (a motion to
13 reopen must be accompanied by “material” evidence). Indeed,
14 Jin did not claim that he was being targeted due to his
15 completion of leadership training, but rather due to his
16 membership in the CDP and participation in CDP activities,
17 both of which predated his August 2008 hearing before the
18 IJ.
19 With respect to Jin’s brother’s letter, as the BIA
20 noted in its decision, the letter “is undated and does not
21 specify when the police allegedly questioned him about
22 [Jin]’s political activities.” The envelope Jin filed
23 evidencing his receipt of the letter was also undated.
5
1 Furthermore, although Jin stated in an affidavit submitted
2 with his motion that government officials had visited his
3 relatives “on a few occasions,” he did not specify when
4 those visits had occurred. Therefore, because Jin failed to
5 demonstrate that evidence that the Chinese government was
6 aware of his CDP activities and had threatened to arrest him
7 should he return to China was not unavailable and
8 undiscoverable prior to his August 2008 hearing, the BIA did
9 not abuse its discretion in denying his motion to remand.
10 See 8 C.F.R. § 1003.2(c)(1); see also Li Yong Cao, 421 F.3d
11 at 156-57; Ke Zhen Zhao v. U.S. Dep’t of Justice,
265 F.3d
12 83, 93 (2d Cir. 2001).
13 For the foregoing reasons, the petition for review is
14 DENIED, and Jin’s pending motion for a stay of removal in
15 this petition is DISMISSED as moot.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
6
