Filed: Feb. 15, 2011
Latest Update: Feb. 21, 2020
Summary: 08-0367-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 P
Summary: 08-0367-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 PA..
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08-0367-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 15th day of February, two thousand eleven.
PRESENT:
DENNIS JACOBS,
Chief Judge
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
____________________________________
MIN HUI GAO, MING
GUANG GAO v. HOLDER,1 08-0367-ag
A098 642 237
A098 642 238
____________________________________
JING QING ZOU v. HOLDER, 08-1946-ag
A073 656 479
____________________________________
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
1
Attorney General Eric. H. Holder, Jr., is automatically substituted
where necessary.
11082010-1-19
____________________________________
GUO WANG CHEN v. HOLDER, 08-2323-ag
A073 766 490
____________________________________
SHUI YING YANG v. HOLDER, 08-5966-ag
A098 775 760
____________________________________
AI JIAO LIN v. HOLDER, 08-6248-ag
A099 682 990
____________________________________
RUIXIA ZHENG v. HOLDER, 09-2514-ag
A090 347 474
____________________________________
CHANG-TAN CHEN, XIU YA
LIU v. HOLDER, 09-2608-ag
A075 829 601
A099 683 460
____________________________________
SI TING GUANG v. HOLDER, 09-2730-ag
A079 430 039
____________________________________
FANG DONG, AKA YING CHANG,
JING QING JIANG v. BCIS, 09-2743-ag
A094 813 562
A094 813 563
____________________________________
BAO JUAN CHEN v. HOLDER, 09-2753-ag
A093 408 744
____________________________________
11082010-1-19 -2-
____________________________________
YING LIN, GUO FU LIN
v. HOLDER, 09-3060-ag
A094 048 559
A094 048 560
____________________________________
CUI QING WANG v. HOLDER, 09-3125-ag
A093 394 027
____________________________________
YUN MEI GUAN v. HOLDER, 09-3210-ag
A099 432 589
____________________________________
CHENGBIN ZHENG v. HOLDER, 09-3368-ag
A093 397 253
____________________________________
FENG BIN JIANG v. HOLDER, 09-3415-ag
A095 872 337
____________________________________
QIU YUN LI v. HOLDER, 09-3458-ag
A078 219 851
____________________________________
HUIZHU LIN, AKA HUI ZHU
LIN v. HOLDER, 09-4709-ag
A077 844 816
____________________________________
RONG DUAN ZHUANG, PEI SONG
ZHUANG v. HOLDER, 09-4882-ag
A094 046 455
A094 046 456
____________________________________
LIFENG ZHU v. HOLDER, 09-4980-ag
A099 930 630
____________________________________
11082010-1-19 -3-
UPON DUE CONSIDERATION of these petitions for review of
several 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. The
applicable standards of review are well-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 claim that they fear
persecution because they have 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.
2
The petitioners in Shui Ying Yang v. Holder, No. 08-5966-ag;
Ying Lin, Guo Fu Lin v. Holder, No. 09-3060-ag; and Qiu Yun Li v.
Holder, No. 09-3458-ag.
11082010-1-19 -4-
Some of the petitioners3 argue that the BIA has erred by
improperly conducting de novo review of determinations made by
an IJ. Many of them rely on a recent decision of the Third
Circuit, ruling, in the context of a claim under the
Convention Against Torture, that the BIA must review for clear
error findings of fact, including predictions of future
events, but may review de novo conclusions of law as to
whether the facts found satisfy a particular legal standard.
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 IJ’s factual findings. Instead, the BIA has concluded,
on de novo review, that the facts, as found by the IJ, do not
meet the legal standard of an objectively reasonable fear of
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 review of the IJ’s factual
findings by making “a legal determination that, while
3
The petitioners in Min Hui Gao, Ming Guang Gao v. Holder, No.
08-0367-ag; Jing Qing Zou v. Holder, No. 08-1946-ag; Ai Jiao Lin v.
Holder, No. 08-6248-ag; Ying Lin, Guo Fu Lin v. Holder, No. 09-
3060-ag; Cui Qing Wang v. Holder, No. 09-3125-ag; Yun Mei Guan v.
Holder, No. 09-3210-ag; Qiu Yun Li v. Holder, No. 09-3458-ag; Rong
Duan Zhuang, Pei Song Zhuang v. Holder, No. 09-4882-ag; and Lifeng
Zhu v. Holder, No. 09-4980-ag.
11082010-1-19 -5-
[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”). Similarly, in Chengbin Zheng v. Holder, No. 09-
3368-ag, contrary to the petitioner’s argument, the BIA did
not erroneously review certain record evidence de novo when it
adopted and affirmed the IJ’s decision in its entirety and
simply noted that certain evidence was not authenticated or
failed to demonstrate the objective reasonableness of the
petitioner’s claimed fear of persecution. See 8 C.F.R. §
1003.1(d)(3); see also Jian Hui Shao, 546 F.3d at 162-63.
Three of the petitioners4 argue that the agency applied
an incorrect burden of proof by requiring them to establish a
certainty of persecution. However, in those cases, the agency
explicitly considered whether they had demonstrated a well-
founded fear of persecution as opposed to a certainty of
persecution. See Jian Hui Shao, 546 F.3d at 156.
Some of the petitioners5 argue that the BIA failed to give
4
The petitioners in Ai Jiao Lin v. Holder, No. 08-6248-ag;
Feng Bin Jiang v. Holder, No. 09-3415-ag; and Huizhu Lin v. Holder,
No. 09-4709-ag.
5
The petitioners in Ai Jiao Lin v. Holder, No. 08-6248-ag;
Ying Lin, Guo Fu Lin v. Holder, No. 09-3060-ag; Cui Qing Wang v.
Holder, No. 09-3125-ag; and Qiu Yun Li v. Holder, No. 09-3458-ag.
11082010-1-19 -6-
sufficient consideration to the statement of Jin Fu Chen, who
alleged that he suffered forcible sterilization after his
return to China based on the two children born to his wife 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
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). We cannot say, furthermore, that the
agency’s conclusion concerning the probative force of the
statement involved any error of law.
In Huizhu Lin v. Holder, No. 09-4709-ag, we find no merit
to petitioner’s argument that she established her eligibility
for CAT relief based on her purportedly illegal departure from
China. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d
156, 159-60 (2d Cir. 2005). Finally, in Ai Jiao Lin v.
Holder, No. 08-6248-ag, the BIA reasonably declined to review
11082010-1-19 -7-
evidence submitted for the first time on appeal absent any
argument as to why such evidence merited further consideration
on remand. See 8 C.F.R. § 1003.1(d)(3)(iv); see also Matter
of Fedorenko, 19 I. & N. Dec. 57, 74 (BIA 1984).
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
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
11082010-1-19 -8-
