Kai-Rui Pan v. Mukasey
Kai-Rui Pan v. Mukasey
Opinion of the Court
SUMMARY ORDER
Kai-Rui Pan and Cheng Yu Zhang, natives and citizens of the People’s Republic of China, seek review of a July 9, 2007, order of the BIA summarily affirming the August 23, 2005, decision of Immigration Judge (“IJ”) Adam Opaciuch denying their applications for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). In re Kai-Rui Pan, Nos. A97 976 333 (B.I.A. July 9, 2007), aff'g In re Kai-Rui Pan/Cheng Yu Zhang, Nos. A97 976 333/97 970 362 (Im-mig. Ct. N.Y. City Aug. 23, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir. 2004). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir. 2004).
As an initial matter, we decline to consider the petitioners’ argument that the government’s failure to forward their asylum applications to the Department of State requires remand. Petitioners did not exhaust that argument before the BIA, and the government has asserted their failure to exhaust as an affirmative defense. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1 (2d Cir. 2007). Moreover, we deem the petitioners’ CAT claim abandoned, as they have not raised that claim in their brief to this Court. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).
I. Asylum
We conclude that the IJ properly found that the petitioners were ineligible for asylum because they had been firmly resettled in Brazil. See 8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R. § 208.13. To determine whether an individual has been firmly resettled in another country, this Court applies a “totality of the circumstances” test that considers the conditions of the individual’s sojourn in that country. See Sail v. Gonzales, 437 F.3d 229, 233 (2d Cir. 2006). In this case, the IJ’s finding that the petitioners had been firmly resettled in Brazil was supported by substantial evidence, given that there was evidence in the record to support his finding that petitioners were able to travel freely in Brazil, live where they wanted to live, and that they had legal status in Brazil and may have eventually been eligible to obtain naturalization. A letter from the Brazilian
II. Withholding of Removal
We conclude that the IJ did not err in denying the petitioners’ application for withholding.
Moreover, the IJ did not err in denying withholding of removal as the petitioners failed to establish a likelihood of future persecution based on the birth of their child in the United States. While evidence in the record tends to show that a parent may be subject to economic and administrative sanctions if they violate the family planning policy, and that physical coercion is reported in some areas, the petitioners have not indicated that Fujia-nese authorities subject violators of the family planning policy to treatment that rises to the level of persecution. See Jian
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, petitioner’s pending motion for a stay of removal in this petition is DENIED as moot.
. We reject the government's argument that the petitioners have waived their withholding of removal claim in their brief to this Court. At the outset of their brief, the petitioners clearly state their challenge to the IJ's denial of their application for withholding of removal. Moreover, the petitioners' brief is largely devoted to their assertion that they suffered past persecution, and that they face sterilization upon return to China — facts and arguments relevant to both their asylum and withholding claims. Accordingly, we find that they have sufficiently preserved their withholding claim for review before this Court.
. Any claim based solely on the abortion of Pan's former "wife” is unavailing. See Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 309-10 (2d Cir. 2007) (en banc) (finding that the spouses or partners of persons who have been forced to submit to abortions or sterilization procedures are not automatically eligible for asylum; rather, they must establish that they have been or will be persecuted for demonstrating "other resistance" to the coercive population control program), cert. denied-U.S.-, 128 S.Ct. 2472, 171 L.Ed.2d 766 (2008).
Reference
- Full Case Name
- KAI-RUI PAN, Cheng Yu Zhang v. Michael B. MUKASEY
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- 2 cases
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- Published