07-4984-ag
Huang 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 24 th day of May,         two thousand ten.

PRESENT:
         DENNIS JACOBS,
              Chief Judge,
         JON O. NEWMAN,
         PIERRE N. LEVAL,
             Circuit Judges.
_________________________________

XUE GUI HUANG v. HOLDER, 1                                         07-4984-ag
A078 848 824
_________________________________

MEI FANG LIN v. BCIS,                                              07-5313-ag
A073 658 580
_________________________________

YI DI GUO v. HOLDER,                                               07-5787-ag
A073 178 433
_________________________________


        1
       Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Eric. H. Holder, Jr., is automatically substituted for former Attorney Generals
where necessary.

03082010-1-20
_________________________________

PIN KAO ZHANG v. HOLDER,            08-1251-ag
A073 541 463
_________________________________

SONG XUE GAO, KIN WO HA
v. HOLDER,                          08-1779-ag
A098 975 105
A098 975 106
_________________________________

FENG LING ZHENG, DE CHAI
CHI v. HOLDER                       08-2108-ag
A078 692 303
A098 972 052
_________________________________

LIQIN BIAN, AKA LI QIN BIAN,
KONG ZHANG NI v. HOLDER,            08-2460-ag
A076 478 753
A070 893 053
_________________________________

XUE YU WANG v. HOLDER,              08-3248-ag
A099 592 457
_________________________________

GUO SHUI LIN v. HOLDER,             08-4369-ag
A073 787 941
_________________________________

BAOYUN CHEN, XILIN SHI v.
HOLDER,                             08-5322-ag
A099 076 707
A099 076 708
_________________________________

YUE MING JIN v. HOLDER,             08-5551-ag
A094 778 719
_________________________________




03082010-1-20               -2-
_________________________________

XIU ZHEN WANG, BAI LIN
v. HOLDER,                                       08-5892-ag
A099 930 724
A078 221 998
_________________________________

YAN CHEN CHEN v. HOLDER,                         08-6246-ag
A099 686 888
_________________________________

LEI LEI ZHOU, CHENG YUAN
HUANG v. HOLDER,                                 09-0141-ag
A099 560 248
A099 560 249
_________________________________

LI YUN LIN v. HOLDER,                            09-0245-ag
A098 971 528
_________________________________

NENG QUAN WANG v. HOLDER,                        09-0261-ag
A099 927 095
_________________________________

WAN ZHEN ZHENG, BIN CHEN
v. HOLDER,                                       09-0529-ag
A099 938 919
A099 938 920
_________________________________

YA QIN HUANG, ZENG XIONG
ZHENG v. HOLDER,                                 09-1545-ag
A094 046 463
A094 046 464
_________________________________

XIU JIN LIN v. HOLDER,                           09-2745-ag
A094 813 717
_________________________________

    UPON DUE CONSIDERATION of these petitions for review of


                            -3-
several Board of Immigration Appeals (“BIA”) orders, it is

hereby ORDERED, ADJUDGED, AND DECREED, that these petitions

for review are DENIED.

      Petitioners, all citizens of China, seek review of BIA

orders    either    affirming    an    immigration     judge’s     (“IJ’s”)

decision denying asylum and related relief or reversing the

IJ’s decision granting relief based on their claim that they

fear persecution because they had one or more children in the

United States.     For largely the same reasons as this Court set

forth in Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.

2008), we find no error in the BIA’s decision denying each

application. 2     See id. at 168-72.

      Some of the petitioners argue that the BIA failed to give

sufficient consideration or importance to the affidavit 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

affidavit (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,


      2
       We decline to review petitioners’ illegal departure claim in Bian v.
Holder, Docket No. 08-2460-ag, because they failed to exhaust this argument
before the agency. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107
n.1, 122 (2d Cir. 2007).

                                      -4-
the BIA has considered the Jin Fu Chen affidavit in numerous

cases    and      has    repeatedly            concluded       that     it     neither

demonstrates material changed country conditions nor supports

a well-founded fear of persecution.                   See, e.g., In re Ai Bin

Chen, No. A078 727 599 (B.I.A. 2009); Mei Feng Weng, No. A077

322 259 (B.I.A. 2009).             Accordingly, it is clear that further

consideration of the affidavit 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 affidavit involved any

error of law.

      Some of the petitioners also argue that the BIA has erred

by improperly conducting de novo review of determinations made

by an IJ.         They rely on the 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 that conclusions of law as to whether the facts

found satisfy a legal standard are reviewed de novo.                               See

Kaplun v. Attorney General, No. 08-2571, 2010 WL 1409019 (3d

Cir. April 9, 2010).              Their claim lacks merit.              The BIA has

not   reviewed     de    novo      any    of    the   IJs’     factual       findings.

                                          -5-
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.         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 [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”).

       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




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