UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

CHUNXUN LI, 

 Petitioner, 

v. 

ERIC H. HOLDER, JR., United States 

Attorney General, 

 Respondent. 

No. 14-9551 

(Petition for Review)

 

ORDER AND JUDGMENT*

 

Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges. 

 

 Chunxun Li, a Chinese national, seeks review of a Board of Immigration 

Appeals (BIA) decision affirming an immigration judge’s (IJ) final order of removal. 

We dismiss the petition in part for lack of jurisdiction and deny it in part for the 

reasons stated below. 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 17, 2015

Elisabeth A. Shumaker 

Clerk of Court
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I 

Li entered this country illegally in 1997. In 2008, the government charged him 

with being present in the United States without proper admission or parole. 

See 8 U.S.C. § 1182(a)(6)(A)(i). Li conceded the charge but applied for asylum, 

restriction on removal, protection under the Convention Against Torture (CAT), and 

cancellation of removal. In support of his applications, Li claimed he had a 

well-founded fear of persecution because of China’s family-planning and forced 

sterilization policies. Before the IJ, Li explained he had three children, all of whom 

are U.S. citizens. After he arrived in the United States, he married a woman and 

together they had two daughters. His wife passed away, however, compelling him to 

send his daughters to live with his mother in China for several years. In the 

meantime, Li stayed in the United States and fathered a third child, a son, with 

another woman. This woman cared for their son and his daughters, who had since 

returned to the United States. If removed to China, Li fears he will face the prospect 

of forced sterilization, menial work, and difficulty educating his children. 

After considering this and other evidence, including a 2007 State Department 

country report on China, the IJ concluded Li was not entitled to relief. According to 

BIA decisions parents who return to China with children born elsewhere lack a 

well-founded fear of persecution because China has no policy of forced sterilization 

for such individuals. As to cancellation of removal, Li failed to show how his 

children would suffer exceptional or extremely unusual hardship if he was removed 
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to China. The older daughters had spent most of their lives in China and were able to 

obtain adequate education and Li failed to show how his son would experience 

hardship. 

Upon review the BIA relied on its prior decisions determining forced 

sterilization was not imposed on parents with circumstances similar to Li’s. Persons 

returning to China with U.S.-born children generally face only fines and other 

economic penalties. Thus Li’s circumstances, it concluded, did not support the 

well-founded fear of forced sterilization or other persecution necessary for asylum. 

A fortiori, Li failed to meet the higher standards required for restriction on removal 

and CAT relief. In upholding the refusal to cancel removal, the BIA agreed with the 

IJ: Li failed to show the requisite hardship because his older daughters had spent 

most of their lives in China, where his family had contributed to their education 

expenses. Also, he failed to elaborate on the hardship facing his son. 

In summary, the BIA affirmed the IJ’s decision in toto. Li now seeks our 

review of his case. 

II 

We first define the scope of our review. Where, as here, the BIA issues a brief 

order affirming the IJ’s decision, “we will not affirm on grounds raised in the IJ 

decision unless they are relied upon by the BIA in its affirmance.” Uanreroro v. 

Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). We review the BIA’s legal 
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conclusions de novo, and its factual determinations for substantial evidence. 

See Razkane v. Holder, 562 F.3d 1283, 1287 (10th Cir. 2009). 

Although we retain jurisdiction to review constitutional claims and questions 

of law raised upon a petition for review, 8 U.S.C. § 1252(a)(2)(D), we lack 

jurisdiction to review the agency’s discretionary denial of cancellation of removal, 

8 U.S.C. § 1252(a)(2)(B)(i); Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1148 

(10th Cir. 2005). Specifically, we lack jurisdiction to review the agency’s 

discretionary determination that an alien has failed to show exceptional and 

extremely unusual hardship as required by 8 U.S.C. § 1229b(b)(1)(D). See Alzainati 

v. Holder, 568 F.3d 844, 848 (10th Cir. 2009). Here, the BIA affirmed the denial of 

cancellation of removal solely because Li failed to satisfy the proof of hardship 

requirement. Because we lack jurisdiction to review its discretionary determination, 

we dismiss the petition for review to the extent it quarrels with the denial of 

cancellation of removal. 

Li does not advance any argument challenging the denial of restriction on 

removal or CAT protection. Although he briefly mentions these applications for 

relief in his summary of the arguments, see Pet’r Br. at 6-7, such passing references 

fail to preserve an issue for review. See Bronson v. Swensen, 500 F.3d 1099, 1104 

(10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not 

raised, or are inadequately presented, in an appellant’s opening brief.”). 

Consequently, we decline to consider the agency’s denial of restriction on removal or 
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CAT relief. See Rodas-Orellana v. Holder, 780 F.3d 982, 998 (10th Cir. 2015) 

(applying waiver rule where alien failed to challenge agency determination in 

opening brief). 

This leaves only the denial of Li’s asylum claim. To establish eligibility for 

asylum, an alien must show he “suffered past persecution or has ‘a well-founded fear 

of future persecution on account of race, religion, nationality, membership in a 

particular social group, or political opinion.’” Tulengkey v. Gonzales, 425 F.3d 1277, 

1280 (10th Cir. 2005) (footnote and brackets omitted) (quoting 8 U.S.C. 

§ 1101(a)(42)(A)). “[A] person who has a well[-]founded fear that he or she will be 

forced to [abort a pregnancy or to undergo involuntary sterilization] shall be deemed 

to have a well[-]founded fear of persecution on account of political opinion.” 

8 U.S.C. § 1101(a)(42). A well-founded fear of persecution “must be both 

subjectively genuine and objectively reasonable.” Tulengkey, 425 F.3d at 1281. 

Li first contends he is prima facie eligible for asylum because he submitted 

credible testimony and other evidence showing a well-founded fear of persecution. 

But this argument simply asks us to reweigh the evidence so that we might resolve 

the matter differently. That is beyond our ken. See Sidabutar v. Gonzales, 503 F.3d 

1116, 1125 (10th Cir. 2007). We do not review arguments merely claiming the 

evidence “‘supports a different outcome.’” Alzainati, 568 F.3d at 850-51 (quoting 

Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007)). 
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Li also faults the BIA for refusing to consider new evidence—specifically, a 

2008 State Department country report on China “and a 2009 decision . . . from a 

Chinese governing body,” Pet’r Br. at 14—both of which Li attempted to submit to 

the BIA during his administrative appeal. But the BIA was under no obligation to 

accept this material because it “operates as an appellate body and its practice 

therefore is not to accept a tender of evidence . . . but instead, if it thinks the new 

evidence might change the outcome, to remand the case to the [IJ].” 

Reyes-Hernandez v. INS, 89 F.3d 490, 494 (7th Cir. 1996). Li made no motion to 

remand, and the BIA was under no obligation to consider the new evidence in the 

first instance. 

Finally, Li says the BIA selectively relied on only unfavorable portions of the 

2007 country report, without discussing other aspects of the same report more 

favorable to him. We have no jurisdiction to consider this argument because Li 

raises it solely to challenge the agency’s discretionary determination that he failed to 

establish hardship for purposes of cancellation of removal. See Pet’r Br. at 15-17 

(discussing portions of the 2007 country report that purportedly support claim of 

hardship). Yet even if we could consider this argument, “the BIA is not required to 

discuss every piece of evidence when it renders a decision,” Hadjimehdigholi v. INS, 

49 F.3d 642, 648 n.2 (10th Cir. 1995). 

 
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III 

The petition for review dismissed in part (as discussed) for lack of jurisdiction. 

We deny relief in all other respects. 

Entered for the Court 

Terrence L. O’Brien 

Circuit Judge