Filed: Feb. 14, 2011
Latest Update: Feb. 21, 2020
Summary: 09-1242-ag Ou v. Holder BIA Mulligan, IJ A094 041 751 A094 041 752 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 DATABAS
Summary: 09-1242-ag Ou v. Holder BIA Mulligan, IJ A094 041 751 A094 041 752 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..
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09-1242-ag
Ou v. Holder
BIA
Mulligan, IJ
A094 041 751
A094 041 752
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 14th day of February, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 _________________________________________
13
14 YUN YAN OU, HAO CHEN,
15 Petitioners,
16
17 v. 09-1242-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONERS: Richard Tarzia, Belle Mead, New
25 Jersey.
26
11082010-20
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Francis W. Fraser, Senior
3 Litigation Counsel; Linda Y. Cheng,
4 Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED, that the petition for review
11 is DENIED.
12 Yun Yan Ou and Hao Chen, natives and citizens of China,
13 seek review of a January 27, 2009, BIA decision:
14 (1) vacating the April 26, 2007, decision of Immigration
15 Judge (“IJ”) Thomas J. Mulligan insofar as he granted their
16 application for asylum and affirming the IJ’s decision
17 insofar as he denied their application for withholding of
18 removal; and (2) denying their motion to remand. In re Yun
19 Yan Ou, Hao Chen, Nos. A094 041 751, A094 041 752 (B.I.A.
20 Jan. 27, 2009), vacating, in part, Nos. A094 041 751, A094
21 041 752 (Immig. Ct. N.Y. City Apr. 26, 2007).
22 As an initial matter, we grant petitioners’ motion to
23 supplement the record. Petitioners have demonstrated that
24 the twenty-seven sub-exhibits they have submitted with their
25 motion were made a part of the record before the agency and
26 were considered by the agency in rendering its decisions.
11082010-20 2
1 Because we must decide the petition “on the administrative
2 record on which the order of removal is based,” we grant
3 petitioners’ motion. See 8 U.S.C. § 1252(b)(4)(A).
4 Under the circumstances of this case, we review the
5 IJ’s decision as modified and supplemented by the BIA. See
6 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
7 (2d Cir. 2005); see also Yan Chen v. Gonzales,
417 F.3d 268,
8 271 (2d Cir. 2005). We review the agency’s factual findings
9 under the substantial evidence standard. 8 U.S.C.
10 § 1252(b)(4)(B); see also Corovic v. Mukasey,
519 F.3d 90,
11 95 (2d Cir. 2008). We review the BIA’s denial of a motion
12 to remand for abuse of discretion. See Li Yong Cao v. U.S.
13 Dep’t of Justice,
421 F.3d 149, 157 (2d Cir. 2005). When
14 the BIA considers relevant evidence of country conditions in
15 evaluating a motion, we review the BIA’s factual findings
16 under the substantial evidence standard. See Jian Hui Shao
17 v. Mukasey,
546 F.3d 138, 169 (2d Cir. 2008).
18 Petitioners sought relief from removal based on their
19 claim that they fear persecution because they have more than
20 one child in violation of China’s population control
21 program. For largely the same reasons this Court set forth
22 in Jian Hui Shao v. Mukasey,
546 F.3d 138 (2d Cir. 2008), we
11082010-20 3
1 find no error in the agency’s denial of their application
2 for relief and motion to remand. See id. at 158-72.
3 Petitioners also argue that the BIA erred by improperly
4 conducting de novo review of determinations made by the IJ.
5 Their claim lacks merit. The BIA has not reviewed de novo
6 any of the IJs’ factual findings. Instead, the BIA has
7 concluded, on de novo review, that the factual findings do
8 not meet the legal standard of an objectively reasonable
9 fear of persecution, in this cases, a fear of forced
10 sterilization or economic persecution. That approach is
11 entirely consistent with the applicable regulation, 8 C.F.R.
12 § 1003.1(d)(3). See Jian Hui
Shao, 546 F.3d at 162-63
13 (concluding that the BIA did not erroneously conduct de novo
14 review of the IJ’s factual findings by making “a legal
15 determination that, while [petitioners’] credible testimony
16 was sufficient to demonstrate a genuine subjective fear of
17 future persecution, more was needed to demonstrate the
18 objective reasonableness of that fear”).
19 Petitioners also argue that the statement of Jin Fu
20 Chen, who alleged that he suffered forcible sterilization
21 after his return to China based on the births of his two
22 children in Japan, demonstrates their eligibility for
11082010-20 4
1 relief. A prior panel of this Court has remanded a petition
2 making a similar claim so that Jin Fu Chen’s statement
3 (which was submitted to the BIA after a remand) could be
4 considered by the IJ. See Zheng v. Holder, No. 07-3970-ag
5 (2d Cir. Jan. 15, 2010). Since that remand, the BIA has
6 repeatedly concluded that Jin Fu Chen’s statement does not
7 support a claim of a well-founded fear of persecution.
8 Accordingly, it is clear that further consideration of that
9 statement in cases, such as this case, in which the IJ or
10 the BIA failed to consider it would not change the result.
11 See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008).
12 We cannot say, furthermore, that the agency’s conclusion
13 concerning the probative force of the statement involved any
14 error of law.
15 For the foregoing reasons, petitioners’ motion to
16 supplement the record is GRANTED and this petition for
17 review is DENIED. As we have completed our review, any stay
18 of removal that the Court previously granted in this
19 petition is VACATED, and any pending motion for a stay of
20 removal in this petition is DISMISSED as moot. Any pending
11082010-20 5
1 request for oral argument in this petition is DENIED in
2 accordance with Federal Rule of Appellate Procedure
3 34(a)(2), and Second Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
11082010-20 6
