08-5671-ag
Zhu 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 28 th day of May,         two thousand ten.

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

ZHAO HUI ZHU and XUE YUN ZHU                             08-5671-ag(L)
v. HOLDER, 1                                             09-3747-ag(CON)
A094 048 718
A094 048 719
_________________________________

         UPON DUE CONSIDERATION of this petition for review of a

Board        of   Immigration   Appeals   (“BIA”)    order,    it   is   hereby

ORDERED, ADJUDGED, AND DECREED, that this petition for review



         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.
is DENIED.

      Petitioners, citizens of China, seek review of a BIA

order reversing the IJ’s decision granting relief based on

their claim that they fear persecution based on the birth of

their 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 their application.               See id. at 168-72.

      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,

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


                                     -2-
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.

       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.         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


                                     -3-
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, the petition for review is

DENIED.         As we have completed our review, any stay of removal

that the Court previously granted is VACATED, and any pending

motion for a stay of removal is DISMISSED as moot.                       Any

pending request for oral argument 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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