         09-3456-ag
         Chen v. Holder
                                                                                        BIA
                                                                                   Sichel, IJ
                                                                               A099 683 479
                           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 7th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                     DENNIS JACOBS,
 8                          Chief Judge,
 9                     JON O. NEWMAN,
10                     PIERRE N. LEVAL,
11                          Circuit Judges.
12       _______________________________________
13
14       FEN WANG CHEN,
15                Petitioner,
16
17                        v.                                    09-3456-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Richard Tarzia, Belle Mead, New
25                                     Jersey.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Terri J. Scadron, Assistant
29                                     Director; Lauren Ritter, Law Clerk,
30                                     Office of Immigration Litigation,
31                                     United States Department of Justice,
32                                     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 both the

 4   government’s motion to remand and the petition for review

 5   are DENIED.

 6       Petitioner Fen Wang Chen, a native and citizen of

 7   China, seeks review of a July 23, 2009, decision of the BIA

 8   reversing Immigration Judge (“IJ”) Helen J. Sichel’s January

 9   15, 2008, decision granting his application for asylum.        In

10   re Fen Wang Chen, No. A099 683 479 (B.I.A. July 23, 2009),

11   aff’g No. A099 683 479 (Immig. Ct. N.Y. City Jan. 15, 2008).

12   We assume the parties’ familiarity with the underlying facts

13   and procedural history of this case.

14       Under the circumstances of this case, we have reviewed

15   the BIA’s decision as the final agency determination.     See

16   Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The

17   applicable standards of review are well-established.     See

18   8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey,

19   546 F.3d 138, 157-58 (2d Cir. 2008).

20       The government moves to remand the petition for review

21   to the BIA for reevaluation in light of our discussion of

22   the BIA’s standard of review in De La Rosa v. Holder, 598

23   F.3d 103 (2d Cir. 2010).   We find that remand in this

                                   2
 1   instance would be futile.     See id. at 108.   The agency’s

 2   regulations provide that the BIA “will not engage in de novo

 3   review of findings of fact determined by an immigration

 4   judge [and that f]acts determined by the immigration judge,

 5   . . . shall be reviewed only to determine whether the

 6   findings of the immigration judge are clearly erroneous.”

 7   8 C.F.R. § 1003.1(d)(3)(i).    The BIA may, however, “review

 8   questions of law, discretion, and judgment . . . de novo”

 9   and may take “administrative notice of commonly known facts

10   such as current events or the contents of official

11   documents.”    8 C.F.R. § 1003.1(d)(3)(ii), (iv).   In De La

12   Rosa, we found that the BIA failed to comply with these

13   regulations when it “articulated its standard of review as

14   that of determining ‘the weight of the evidence’ . . .[,

15   which] is often equated across the circuits with a de novo

16   inquiry into the preponderance of the evidence.”     598 F.3d

17   at 107-08.    We further noted that the BIA appeared to make

18   its own factual findings that were “demonstratively at odds

19   with factual findings made by the IJ.”     Id. at 107.

20       Here, unlike in De La Rosa, the BIA articulated the

21   proper standard of review, noting that it “review[s] the

22   Immigration Judge’s findings of fact . . . under the


                                     3
 1   ‘clearly erroneous’ standard, while [it] reviews de novo

 2   questions of law, discretion, and judgment.”   See 8 C.F.R.

 3   § 1003.1(d)(3).   Moreover, unlike in De La Rosa, the BIA did

 4   not make its own factual findings at odds with the IJ’s

 5   factual findings, but reasonably relied on precedential

 6   decisions and country conditions evidence to conclude that,

 7   as a matter of law, Chen’s evidence failed to demonstrate

 8   the objective reasonableness of his claimed fear of

 9   persecution.   See 8 C.F.R. § 1003.1(d)(3); see also Jian Hui

10   Shao, 546 F.3d at 162.   For instance, in evaluating the

11   evidence, the IJ found that Chen’s case was distinguishable

12   from the BIA’s precedential decision in Matter of J-W-S-, 24

13   I. & N. Dec. 185 (BIA 2007), and that he was eligible for

14   asylum, because he submitted evidence demonstrating that he

15   would be subject to the mandatory sterilization requirement

16   of China’s family planning policy.   In reviewing that

17   decision, the BIA found that the IJ erred as a matter of law

18   in determining that Chen’s case was distinguishable from

19   Matter of J-W-S- because, even if, as the IJ found, Chen

20   would be subject to the family planning policy’s mandatory

21   sterilization requirement, he failed to show that mandatory

22   sterilizations are carried out by “physical force or other


                                   4
 1   means that would amount to persecution.”   Matter of J-W-S-,

 2   24 I. & N. Dec. at 192; see also Jian Hui Shao, 546 F.3d at

 3   165, 172.   Thus, our decision in De La Rosa would not change

 4   the BIA’s evaluation of the IJ’s decision on remand, and the

 5   government’s motion to remand is denied.   See De La Rosa,

 6   598 F.3d at 107-08; see also Jian Hui Shao, 546 F.3d at 162-

 7   63.

 8         With respect to Chen’s claimed fear of persecution in

 9   China on account of the birth of his two U.S. citizen

10   children, we find that his arguments are largely foreclosed

11   by our decision in Jian Hui Shao, 546 F.3d 138.   Among the

12   documents Chen argues established his eligibility for relief

13   is the statement of Jin Fu Chen, who alleged that he

14   suffered forced sterilization after his return to China on

15   account of the births of his two children in Japan.     A prior

16   panel of this Court remanded a petition making a similar

17   claim so that Jin Fu Chen’s statement (which was submitted

18   to the BIA after a remand) could be considered by the IJ.

19   See Zheng v. Holder, No. 07-3970-ag (2d Cir. Jan. 15, 2010).

20   Since the remand in Zheng, the BIA has repeatedly concluded

21   that Jin Fu Chen’s statement does not support a claim of a

22   well-founded fear of persecution.   Accordingly, it is clear

23   that further consideration of the statement in this case
                                   5
 1   would not change the result.    See Shunfu Li v. Mukasey, 529

 2   F.3d 141, 150 (2d Cir. 2008).       Furthermore, we do not find

 3   that the BIA’s conclusions in other cases concerning the

 4   probative force of Jin Fu Chen’s statement involved any

 5   error of law.

 6       For the foregoing reasons, both the government’s motion

 7   to remand and the petition for review are DENIED.       As we

 8   have completed our review, any stay of removal that the

 9   Court previously granted in this petition is VACATED, and

10   any pending motion for a stay of removal in this petition is

11   DISMISSED as moot. Any pending request for oral argument in

12   this petition is DENIED in accordance with Federal Rule of

13   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

14   34.1(b).

15                              FOR THE COURT:
16                              Catherine O’Hagan Wolfe, Clerk
17




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