Page 43

HOLDER,[1] A078 848 824. Mei Fang Lin v. BCIS, A073 658 580. Yi Di Guo v. Holder, A073 178 433. Pin Kao Zhang v. Holder, A073 541 463. Song Xue Gao, Kin Wo Ha v. Holder, A098 975 105, A098 975 106. Feng Ling Zheng, De Chai Chi v. Holder, A078 692 303, A098 972 052. Liqin Bian, aka Li Qin Bian, Kong Zhang Ni v. Holder, A076 478 753, A070 893 053. Xue Yu Wang v. Holder, A099 592 457. Guo Shui Lin v. Holder, A073 787 941. Baoyun Chen, Xilin Shi v. Holder, A099 076 707, A099 076 708. Yue Ming Jin v. Holder, A094 778 719. Xiu Zhen Wang, Bai Lin Holder, A099 930 724, A078 221 998. Yan Chen Chen v. Holder, A099 686 888. Lei Lei Zhou, Cheng Yuan Huang v. Holder, A099 560 248, A099 560 249. Li Yun Lin v. Holder, A098 971 528. Neng Quan Wang v. Holder, A099 927 095. Wan Zhen Zheng, Bin Chen v. Holder, A099 938 919, A099 938 920. Ya Qin Huang, Zeng Xiong Zheng v. Holder, A094 046 463, A094 046 464. Xiu Jin Lin v. Holder, A094 813 717.

Nos. 07-4984-ag, 07-5313-ag, 07-5787-ag, 08-1251-ag, 08-1779-ag, 08-2108-ag, 08-2460-ag, 08-3248-ag, 08-4369-ag, 08-5322-ag, 08-5551-ag, 08-5892-ag, 08-6246-ag, 09-0141-ag, 09-0245-ag, 09-0261-ag, 09-0529-ag, 09-1545-ag, 09-2745-ag.United States Court of Appeals, Second Circuit.
May 24, 2010.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]
[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.

Page 44

UPON DUE CONSIDERATION of these petitions for review of several Board of Immigration Appeals (“BIA”) orders, it is hereby ORDERED, ADJUDGED, AND DECREED, that these petitions for review are DENIED.

Andrew B. Insenga, Esq., M. Jocelyn Lopez Wright, Esq., U.S. Department of Justice, Office of Immigration, Washington, DC, for Respondent.

Richard Tarzia, Esq., The Law Office of Richard Tarzia, Belle Mead, NJ, for Petitioner.


Petitioners, all citizens of China, seek review of BIA orders either affirming an immigration judge’s (“IJ’s”) decision denying asylum and related relief or reversing the IJ’s decision granting relief based on their claim that they fear persecution because they had one or more children in the United States. For largely the same reasons as this Court set forth i Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008), we find no error in the BIA’s decision denying each application.[2] See id. at 168-72.

Page 45

Some of 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, 361 Fed.Appx. 184 (2d Cir. 2010). Since the remand i 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 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.

Some of 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, 602 F.3d 260 (3d Cir. 2010). Their claim lacks merit. The BIA has not reviewed de novo any of the Us’ 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 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, 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).

[2] We decline to review petitioners’ illegal departure claim in Bian v. Holder, Docket No. 08-2460-ag, because they failed to exhaust this argument before the agency See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1, 122 (2d Cir. 2007)

Page 46