         09-1242-ag
         Ou v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A094 041 751
                                                                               A094 041 752


                         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 14th day of February, two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                JON O. NEWMAN,
10                PIERRE N. LEVAL,
11                     Circuit Judges.
12       _________________________________________
13
14       YUN YAN OU, HAO CHEN,
15                Petitioners,
16
17                      v.                                        09-1242-ag
18                                                                NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _________________________________________
23
24       FOR PETITIONERS:              Richard Tarzia, Belle Mead, New
25                                     Jersey.
26

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 1   FOR RESPONDENT:           Tony West, Assistant Attorney
 2                             General; Francis W. Fraser, Senior
 3                             Litigation Counsel; Linda Y. Cheng,
 4                             Attorney, Office of Immigration
 5                             Litigation, United States Department
 6                             of Justice, Washington, D.C.
 7
 8           UPON DUE CONSIDERATION of this petition for review of a

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

10   ORDERED, ADJUDGED, AND DECREED, that the petition for review

11   is DENIED.

12           Yun Yan Ou and Hao Chen, natives and citizens of China,

13   seek review of a January 27, 2009, BIA decision:

14   (1) vacating the April 26, 2007, decision of Immigration

15   Judge (“IJ”) Thomas J. Mulligan insofar as he granted their

16   application for asylum and affirming the IJ’s decision

17   insofar as he denied their application for withholding of

18   removal; and (2) denying their motion to remand.     In re Yun

19   Yan Ou, Hao Chen, Nos. A094 041 751, A094 041 752 (B.I.A.

20   Jan. 27, 2009), vacating, in part, Nos. A094 041 751, A094

21   041 752 (Immig. Ct. N.Y. City Apr. 26, 2007).

22           As an initial matter, we grant petitioners’ motion to

23   supplement the record.     Petitioners have demonstrated that

24   the twenty-seven sub-exhibits they have submitted with their

25   motion were made a part of the record before the agency and

26   were considered by the agency in rendering its decisions.

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 1   Because we must decide the petition “on the administrative

 2   record on which the order of removal is based,” we grant

 3   petitioners’ motion.      See 8 U.S.C. § 1252(b)(4)(A).

 4           Under the circumstances of this case, we review the

 5   IJ’s decision as modified and supplemented by the BIA.        See

 6   Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

 7   (2d Cir. 2005); see also Yan Chen v. Gonzales, 417 F.3d 268,

 8   271 (2d Cir. 2005).      We review the agency’s factual findings

 9   under the substantial evidence standard.      8 U.S.C.

10   § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90,

11   95 (2d Cir. 2008).      We review the BIA’s denial of a motion

12   to remand for abuse of discretion.      See Li Yong Cao v. U.S.

13   Dep’t of Justice, 421 F.3d 149, 157 (2d Cir. 2005).       When

14   the BIA considers relevant evidence of country conditions in

15   evaluating a motion, we review the BIA’s factual findings

16   under the substantial evidence standard.      See Jian Hui Shao

17   v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

18           Petitioners sought relief from removal based on their

19   claim that they fear persecution because they have more than

20   one child in violation of China’s population control

21   program.      For largely the same reasons this Court set forth

22   in Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008), we


     11082010-20                      3
 1   find no error in the agency’s denial of their application

 2   for relief and motion to remand.     See id. at 158-72.

 3           Petitioners also argue that the BIA erred by improperly

 4   conducting de novo review of determinations made by the IJ.

 5   Their claim lacks merit.     The BIA has not reviewed de novo

 6   any of the IJs’ factual findings.     Instead, the BIA has

 7   concluded, on de novo review, that the factual findings do

 8   not meet the legal standard of an objectively reasonable

 9   fear of persecution, in this cases, a fear of forced

10   sterilization or economic persecution.     That approach is

11   entirely consistent with the applicable regulation, 8 C.F.R.

12   § 1003.1(d)(3).     See Jian Hui Shao, 546 F.3d at 162-63

13   (concluding that the BIA did not erroneously conduct de novo

14   review of the IJ’s factual findings by making “a legal

15   determination that, while [petitioners’] credible testimony

16   was sufficient to demonstrate a genuine subjective fear of

17   future persecution, more was needed to demonstrate the

18   objective reasonableness of that fear”).

19           Petitioners also argue that the statement of Jin Fu

20   Chen, who alleged that he suffered forcible sterilization

21   after his return to China based on the births of his two

22   children in Japan, demonstrates their eligibility for


     11082010-20                     4
 1   relief.       A prior panel of this Court has remanded a petition

 2   making a similar claim so that Jin Fu Chen’s statement

 3   (which was submitted to the BIA after a remand) could be

 4   considered by the IJ.       See Zheng v. Holder, No. 07-3970-ag

 5   (2d Cir. Jan. 15, 2010).       Since that remand, the BIA has

 6   repeatedly concluded that Jin Fu Chen’s statement does not

 7   support a claim of a well-founded fear of persecution.

 8   Accordingly, it is clear that further consideration of that

 9   statement in cases, such as this case, in which the IJ or

10   the BIA failed to consider it would not change the result.

11   See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008).

12   We cannot say, furthermore, that the agency’s conclusion

13   concerning the probative force of the statement involved any

14   error of law.

15           For the foregoing reasons, petitioners’ motion to

16   supplement the record is GRANTED and this petition for

17   review is DENIED.       As we have completed our review, any stay

18   of removal that the Court previously granted in this

19   petition is VACATED, and any pending motion for a stay of

20   removal in this petition is DISMISSED as moot.       Any pending




     11082010-20                       5
1   request for oral argument in this petition is DENIED in

2   accordance with Federal Rule of Appellate Procedure

3   34(a)(2), and Second Circuit Local Rule 34.1(b).

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6




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