10-2653-ag

Jin v. Holder

BIA

Hom, IJ

A072 214 235

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

New York, on the 22nd 4 day of March, two thousand twelve.

5

6 PRESENT:

7 JON O. NEWMAN,

8 RALPH K. WINTER,

9 ROSEMARY S. POOLER,

10 Circuit Judges. 

11 _______________________________________

12

13 SONG YIENG JIN,

14 Petitioner, 

15

16 v. 10-2653-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Gary J. Yerman, New York, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Anthony P. Nicastro, Senior

27 Litigation Counsel; Andrew N.

28 O’Malley, Trial Attorney, Office of

29 Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DENIED.

5 Song Yieng Jin, a native and citizen of the People’s

6 Republic of China, seeks review of a June 11, 2010, order of

7 the BIA denying his motion to remand and affirming

8 immigration judge (“IJ”) Sandy K. Hom’s August 18, 2008,

9 denial of his application for asylum, withholding of

10 removal, and relief under the Convention Against Torture

11 (“CAT”). In re Song Yieng Jin, No. A072 214 235 (B.I.A.

12 June 11, 2010); aff’g No. A072 214 235 (Immig. Ct. N.Y. City

13 Aug. 18, 2008). We assume the parties’ familiarity with the

14 underlying facts and procedural history of this case.

15 Under the circumstances of this case, we have reviewed

16 both the IJ’s and the BIA’s decisions. See Xue Hong Yang v.

17 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 

18 The applicable standards of review are well-established. 

19 See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.

20 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

21

22

23
3

1 I. Asylum, Withholding of Removal, and CAT Relief

2 Jin’s arguments regarding his eligibility for relief on

3 account of the birth of his two U.S. citizen children in

4 violation of China’s family planning policy are largely

5 foreclosed by our decision in Jian Hui Shao v. Mukasey, 546

6 F.3d 138 (2d Cir. 2008). The letter from Jin’s brother

7 claiming that he was forcibly sterilized in China following

8 the birth of his children was not material to Jin’s claim

9 because it did not document the forced sterilization of a

10 similarly situated individual, i.e. a Chinese national

11 returning to China with U.S. citizen children. See id. at

12 160-61, 170-71. Moreover, the BIA did not inadequately

13 consider the evidence in the record. “[W]here the BIA has

14 given reasoned consideration to the petition, and made

15 adequate findings, it [need not] expressly parse or refute

16 on the record each individual argument or piece of evidence

17 offered by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d

18 270, 275 (2d Cir. 2006) (internal quotation marks omitted). 

19 The BIA also did not err in giving greater weight to

20 the background evidence in the record, including State

21 Department reports, than to the individualized documentary

22 evidence Jin submitted. See Jian Hui Shao, 546 F.3d at 166,
4

1 171; see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471

2 F.3d 315, 342 (2d Cir. 2006) (finding that the weight

3 afforded to the applicant’s evidence in immigration

4 proceedings lies largely within the discretion of the

5 agency). Finally, Jin failed to demonstrate a reasonable

6 possibility that any fines imposed for the birth of his

7 children would cause him severe harm amounting to economic

8 persecution, as he did not submit any evidence documenting

9 his personal financial circumstances. See Matter of T-Z-,

10 24 I. & N. Dec. 163, 170-75 (B.I.A. 2007); see also Guan

11 Shan Liao v. U.S. Dep’t. of Justice, 293 F.3d 61, 70 (2d

12 Cir. 2002); Jian Hui Shao, 546 F.3d at 161-62, 164 n.25. 

13 II. Motion to Remand

14 Although Jin labeled his motion filed with the BIA a

15 motion to remand, we have held that a motion to remand that

16 “does not simply articulate the remedy sought on appeal,”

17 but rather “relies on newly available evidence is held to

18 the substantive requirements of a motion to reopen.” See Li

19 Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d

20 Cir. 2005). Therefore, because Jin’s motion was accompanied

21 by new evidence supporting his claim that he would be

22 persecuted in China on account of his membership in the
5

1 China Democracy Party (“CDP”), the BIA properly analyzed it

2 under the standards applicable to a motion to reopen. Id.

3 Jin asserts that the BIA erred in finding that he

4 failed to demonstrate that the letter from his brother

5 indicating that Chinese police were aware of his CDP

6 activities, as well as his certificate of graduation from

7 the China Democracy Movement Leadership School, were

8 unavailable at the time of his hearings before the IJ. 

9 However, the certificate of graduation was not material

10 because it was merely cumulative of the information he

11 submitted indicating that he had been a member of the CDP

12 since April 2008. See 8 C.F.R. § 1003.2(c)(1) (a motion to

13 reopen must be accompanied by “material” evidence). Indeed,

14 Jin did not claim that he was being targeted due to his

15 completion of leadership training, but rather due to his

16 membership in the CDP and participation in CDP activities,

17 both of which predated his August 2008 hearing before the

18 IJ. 

19 With respect to Jin’s brother’s letter, as the BIA

20 noted in its decision, the letter “is undated and does not

21 specify when the police allegedly questioned him about

22 [Jin]’s political activities.” The envelope Jin filed

23 evidencing his receipt of the letter was also undated. 
6

1 Furthermore, although Jin stated in an affidavit submitted

2 with his motion that government officials had visited his

3 relatives “on a few occasions,” he did not specify when

4 those visits had occurred. Therefore, because Jin failed to

5 demonstrate that evidence that the Chinese government was

6 aware of his CDP activities and had threatened to arrest him

7 should he return to China was not unavailable and

8 undiscoverable prior to his August 2008 hearing, the BIA did

9 not abuse its discretion in denying his motion to remand. 

10 See 8 C.F.R. § 1003.2(c)(1); see also Li Yong Cao, 421 F.3d

11 at 156-57; Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d

12 83, 93 (2d Cir. 2001). 

13 For the foregoing reasons, the petition for review is

14 DENIED, and Jin’s pending motion for a stay of removal in

15 this petition is DISMISSED as moot.

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe, Clerk

18

19