07-4283-ag (L), 08-0688-ag (Con)
Lin 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 26th day of October, two thousand ten.

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

CHAN LIN v. HOLDER,1                                         07-4283-ag (L)
A098 586 706                                               08-0688-ag (Con)
______________________________

XIU YING CHEN v. HOLDER,                                           07-4940-ag
A098 973 915
______________________________

TING LIN v. UNITED STATES                                          07-5006-ag
DEPARTMENT OF JUSTICE,
A077 292 841
______________________________



      Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
         1

Attorney General Eric. H. Holder, Jr., is automatically substituted
where necessary.
08302010-1-28
______________________________

YI LAN LI v. UNITED STATES          07-5339-ag (L)
ATTORNEY GENERAL,                 08-2538-ag (Con)
A095 476 271
______________________________

HSIANG JIN CHENG, AKA YUEN              07-5660-ag
MAN CHAN, AKA XIANG JIN
ZHENG v. HOLDER,
A077 354 565
______________________________

XIN ZHENG v. HOLDER,                    08-1214-ag
A073 543 533
______________________________

XIAOYE ZHANG v. HOLDER,                 08-1404-ag
A099 076 716
______________________________

YU JIE CHEN v. HOLDER,                  08-1740-ag
A070 908 620
______________________________

MEI RONG LIN v. HOLDER,                 08-2032-ag
A077 769 644
______________________________

JIN YUN WU v. HOLDER,                   08-2627-ag
A097 479 002
______________________________

PING CHEN, AKA AI LING NEO          08-3035-ag (L)
v. HOLDER,                        09-0200-ag (Con)
A077 994 104
______________________________

HAI OU DONG, AKA HAIOU HU           08-3534-ag (L)
v. HOLDER,                        09-1087-ag (Con)
A097 976 136
______________________________


08302010-1-28               -2-
______________________________

MEI HUANG v. HOLDER,                    08-3795-ag
A096 332 846
______________________________

YING HUA CHEN, AKA YI HUA               08-4315-ag
CHEN, AKA HUA CHEN, AKA
YING-HUA CHEN, DE XING WANG,
AKA DI XING WANG v. HOLDER,
A099 564 706
A099 564 707
______________________________

XUEYING LI v. HOLDER,               08-4863-ag (L)
A079 776 082                      09-2701-ag (Con)
______________________________

FU ZHEN ZHENG, AKA DUN RI               08-5839-ag
ZHENG v. HOLDER,
A077 958 111
______________________________

MEI YUN GUO v. HOLDER,                  08-6296-ag
A099 074 200
______________________________

LI MIN HU v. HOLDER,                    09-0347-ag
A073 661 053
______________________________

WU JIAN HE v. HOLDER,                   09-0422-ag
A073 552 855
______________________________

GUANG DA LI v. HOLDER,                  09-0575-ag
A076 506 231
______________________________

TIAN YOU YANG v. HOLDER,                09-1262-ag
A073 039 576
______________________________


08302010-1-28               -3-
______________________________

XIA LI v. HOLDER,                                     09-1394-ag
A099 429 143
______________________________

BEN CHEN v. HOLDER,                                   09-1506-ag
A072 473 754
______________________________

XIAN QU ZHENG v. HOLDER,                              09-1509-ag
A073 033 112
______________________________

BI YUE NI v. HOLDER,                                  09-1693-ag
A094 044 884
______________________________

AI ZHU DONG, CHUN RONG LIN                            09-2231-ag
v. HOLDER,
A077 354 403
A097 478 867
______________________________

BI XIAN ZHANG v. HOLDER,                              09-2500-ag
A090 347 388
______________________________

XIN RONG LIN, AKA RONG LIN                            09-4159-ag
XIN v. HOLDER,
A072 360 974
______________________________

        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:



08302010-1-28                   -4-
(1) affirming the decision of an immigration judge (“IJ”)

denying asylum and related relief; (2) reversing the IJ’s

decision granting relief; (3) denying motions to remand,

reconsider, or reopen; and/or (4) affirming the IJ’s denial of

motions to reconsider or reopen.         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, filed

applications and motions 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 conclude there is no error in the agency’s

decisions.      See id. at 158-72.       Although the petitioners in

Jian Hui Shao were from Fujian Province, as are most of the

petitioners      here,    four    petitioners    are    from   Zhejiang

Province.2 Regardless, as with the evidence discussed in Jian

Hui Shao, the evidence they submitted related to Zhejiang

Province either does not discuss forced sterilizations or

references isolated incidents of persecution of individuals

        2
      The petitioners in Xiaoye Zhang v. Holder, No. 08-1404-ag;
Hai Ou Dong v. Holder, Nos. 08-3534-ag (L), 09-1087-ag (Con); Li
Min Hu v. Holder, No. 09-0347-ag; and Xin Rong Lin v. Holder, No.
09-4159-ag.

08302010-1-28                      -5-
who are not similarly situated to the petitioners. See id. at

160-61, 171-72.

        Some of the petitioners3 argue that the BIA 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,         holding,    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, 602 F.3d 260 (3d Cir. 2010).

These claims lack merit.             The BIA has not reviewed de novo any

of the IJs’ factual findings. Instead, the BIA has concluded,

on de novo review, that the evidence does 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

        3
      The petitioners in Chan Lin v. Holder, Nos. 07-4283-ag (L),
08-0688-ag (Con); Xiu Ying Chen v. Holder, No. 07-4940-ag; Hai Ou
Dong v. Holder, Nos. 08-3534-ag (L), 09-1087-ag (Con); Mei Yun Guo
v. Holder, No. 08-6296-ag; Xia Li v. Holder, No. 09-1394-ag; Bi Yue
Ni v. Holder, No. 09-1693-ag; and Bi Xian Zhang v. Holder, No. 09-
2500-ag.

08302010-1-28                            -6-
“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”).

        Three of the petitioners argue that the BIA applied an

incorrect burden of proof by requiring them to establish more

than their prima facie eligibility for relief.                However, in

two     of      those   cases,4   the   BIA   explicitly   considered   the

petitioners’ prima facie eligibility for relief.               See INS v.

Abudu, 485 U.S. 94, 104 (1988).               In the other case,5 the BIA

reasonably found that the petitioner failed to demonstrate

changed country conditions excusing the untimely filing of his

motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

§ 1003.2(c).

        Some of the petitioners6 argue that the BIA failed to give

sufficient consideration to the statement of Jin Fu Chen, who

alleged that he suffered forcible sterilization after his



        4
      Ping Chen v. Holder, Nos. 08-3035-ag (L), 09-0200-ag (Con);
and Xueying Li v. Holder, Nos. 08-4863-ag (L), 09-2701-ag (Con).
        5
         Wu Jian He v. Holder, No. 09-0422-ag.
        6
      The petitioners in Ying Hua Chen, De Xing Wang v. Holder, No.
08-4315-ag; Xueying Li v. Holder, Nos. 08-4863-ag (L), 09-2701-ag
(Con); Wu Jian He v. Holder, No. 09-0422-ag; Bi Yue Ni v. Holder,
No. 09-1693-ag; and Bi Xian Zhang v. Holder, No. 09-2500-ag.

08302010-1-28                           -7-
return to China based on the births of his two children 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   that   remand,   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 that 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).             Furthermore, the agency’s conclusion

concerning the probative force of the statement did not

involve any error of law.

        Two of the petitioners7 argue that the BIA erred by

relying on the U.S. Department of State’s 2007 Profile of

Asylum Claims and Country Conditions in China (“2007 Profile”)

because statements in that document are based on mistranslated

and contradictory evidence.              However, we have repeatedly

concluded, as the BIA did here, that the purportedly corrected

translations do not materially alter the meaning of the 2007

        7
      The petitioners in Ben Chen v. Holder, No. 09-1506-ag; and
Xian Qu Zheng v. Holder, No. 09-1509-ag.

08302010-1-28                         -8-
Profile by demonstrating a risk of forced sterilization.

        We decline a request by one petitioner8 to consider

evidence that was not included in the administrative record

and we will not remand for the agency to consider such

evidence. See 8 U.S.C. § 1252(b)(4)(A); see also Xiao Xing Ni

v. Gonzales, 494 F.3d 260, 269 (2d Cir. 2007).                          To the extent

that         the     BIA     declined       to     credit       two     petitioners’9

unauthenticated evidence in light of an underlying adverse

credibility           determination,        the     BIA     did    not    abuse     its

discretion.           See Qin Wen Zheng v. Gonzales, 500 F.3d 143,

146-47 (2d Cir. 2007).

        Insofar as two of the petitioners10 argue that the agency

erred in denying their claims for withholding of removal and

CAT     relief       based     on   their    failure      to    demonstrate       their

eligibility for asylum, the agency did not err because all of

their claims were based on the same factual predicate.                              See

Paul         v.    Gonzales,    444     F.3d      148,    156     (2d    Cir.   2006).




        8
      The petitioner in Yi Lan Li v. U.S. Attorney Gen., Nos. 07-
5339-ag (L), 08-2538-ag (Con).
        9
      The petitioners in Fu Zhen Zheng v. Holder, No. 08-5839-ag;
and Guang Da Li v. Holder, No. 09-0575-ag.
        10
      The petitioners in Hai Ou Dong v. Holder, Nos. 08-3534-ag
(L), 09-1087-ag (Con); and Mei Yun Guo v. Holder, No. 08-6296-ag.

08302010-1-28                               -9-
Additionally, contrary to another petitioner’s11 argument, the

agency did not err in determining that she was not “entitled

to CAT protection based solely on the fact that she is part of

the large class of persons who have illegally departed China.”

Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60

(2d Cir. 2005).

        To the extent that one of the petitioners12 argues that

she was eligible to file a successive asylum application, that

argument is foreclosed by our decision in Yuen Jin v. Mukasey,

538 F.3d 143 (2d Cir. 2008).

        We      lack    jurisdiction      to   consider   a     petitioner’s13

challenge to a BIA member’s decision to unilaterally decide

her appeal as opposed to referring her appeal to a three-

member panel.           See Guyadin v. Gonzales, 449 F.3d 465, 469 (2d

Cir. 2006). Even assuming, arguendo, that we had jurisdiction

to    consider         that   argument,   contrary   to   the    petitioner’s

contention, the BIA did not err in disposing of her appeal

with a single-member panel when much of the evidence that she



        11
             The petitioner in Jin Yun Wu v. Holder, No. 08-2627-ag.
        12
      The petitioner in Ting Lin v. U.S. Dep’t of Justice, No. 07-
5006-ag.
        13
       The petitioner in Chan Lin v. Holder, Nos. 07-4283-ag (L),
08-0688-ag (Con).

08302010-1-28                          -10-
submitted had been analyzed in BIA precedential decisions.

See 8 C.F.R. § 1003.1(e)(5) (“A single Board member may

reverse the decision under review if such reversal is plainly

consistent with and required by intervening or Board or

judicial precedent”).

        One of the petitioners14 argues that the BIA erred in

finding that the IJ lacked jurisdiction to consider his motion

to reopen because in a prior decision the BIA had stated that

any future motions should be filed with the IJ.           However, the

BIA’s prior decision informed the petitioner to file any

future motions to rescind, as opposed to motions to reopen,

with the IJ, and the BIA did not err in finding that it had

jurisdiction over petitioner’s third motion to reopen because

it was the last administrative body to issue an order in his

proceedings. See 8 C.F.R. § 1003.23(b)(1); see also Matter of

Patino, 23 I. & N. Dec. 74, 76 (B.I.A. 2001).              Regardless,

because the BIA considered the merits of that petitioner’s

third motion to reopen, and did not dismiss his appeal based

on the IJ’s lack of jurisdiction, any alleged inconsistency

was harmless.




        14
             The petitioner in Ben Chen v. Holder, No. 09-1506-ag.

08302010-1-28                        -11-
        Contrary to another petitioner’s15 argument that the BIA

failed to provide any rational basis for denying his motion

when his wife’s similar motion had been granted, the BIA

reasonably explained that there had been intervening BIA

precedents compelling a different result. See Ke Zhen Zhao v.

U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001).

        Finally, the BIA did not err in denying one petitioner’s16

motion to reconsider because it was untimely.              See 8 C.F.R.

§ 1003.2(b)(2).

        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




        15
             The petitioner in Xin Zheng v. Holder, No. 08-1214-ag.
        16
             The petitioner in Guang Da Li v. Holder, No. 09-0575-ag.

08302010-1-28                        -12-
