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-
