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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
XIU MEI DONG, Petitioner, v. ALBERTO R. GONZALES, Attorney General,
Respondent.
227 Fed. Appx. 38; 2007 U.S. App. LEXIS 1807
Nos. 05-1232; 05-3768
January 25, 2007, Decided
NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1
GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: As Amended April 12, 2007.
PRIOR HISTORY: [*1] Petition for review from the Board of Immigration
Appeals.
COUNSEL: FOR PETITIONER: H. RAYMOND FASANO, Madeo & Fasano (Donald F. Madeo,
on the brief), New York, New York.
FOR RESPONDENT: GERARD J. MENE, Assistant United States Attorney, for Chuck
Rosenberg, United States Attorney, Eastern District of Virginia, Alexandria,
Virginia.
JUDGES: PRESENT: HONORABLE THOMAS J. MESKILL, HONORABLE RICHARD J.
CARDAMONE, HONORABLE REENA RAGGI, Circuit Judges.
OPINION
AMENDED SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the
petition for review of orders of the Board of Immigration Appeals ("BIA")
dated March 7, 2005 and May 17, 2005, is DENIED in part and GRANTED in part.
Xiu Mei Dong, a Chinese citizen, petitions for review of (1) the March 7,
2005 BIA order reversing Immigration Judge ("IJ") Vivienne Gordon-Uruakpa's
decision granting petitioner political asylum and withholding of removal
based on her opposition to China's coercive family planning policy; and (2)
the May 17, 2005 BIA order denying petitioner's motion to reopen her
immigration proceeding. n1 In denying review of the former order and
granting review of the latter, we assume the parties' familiarity [*2] with
the facts and the record of prior proceedings, which we reference only as
necessary to explain our decision.
FN1 Petitioner does not challenge the denial of her claim for relief
pursuant to the Convention Against Torture. Accordingly, we deem this issue
waived. See, e.g., Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir.
2005); Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 199 8).
1. The March 7, 2005 Order
Petitioner submits that the BIA erred in concluding as a matter of law that,
despite evidence of her sister's and aunt's forcible abortions in China and
her own marriage and conception of a child in the United States without
Chinese government approval, she failed sufficiently to demonstrate a
well-founded, objectively reasonable fear of future persecution upon return
to China. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)
(noting subjective and objective components to fear of future persecution).
Because sufficiency [*3] presents a question of law, we review the BIA
holding de novo. See Islami v. Gonzales, 412 F.3d 391, 396 (2d Cir. 2005 );
Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 146 n.2 (2d Cir. 2003). In so doing,
we identify no legal error in the BIA's March 7, 2005 ruling, largely for
the reasons discussed by this court in Huang v. United States Immigration
and Naturalization Service, 421 F.3d 125, 129 (2d Cir. 2005) (upholding
BIA's reliance on country report indicating no uniform policy of Chinese
persecution toward nationals who gave birth abroad and noting that BIA is
"entitled to rely" on country report "so long as in doing so it [does] not
overlook any contradictory evidence directly presented by the petitioner").
Accordingly, we deny the petition to review that order.
2. The May 17, 2005 Order
We reach a different conclusion, however, with respect to the BIA's May 17,
2005 order declining to reopen petitioner's immigration proceedings.
Although we review such rulings only for a bus e of discretion, see Jin Ming
Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) ; Kaur v. BIA, 413 F.3d
232, 233-34 (2d Cir. 2005), [*4] we identify such a concern in this case
because the BIA appears to have held petitioner to a higher burden of
production than the law requires, demanding evidence "clear[ly]"
demonstrating petitioner's future persecution by population control
authorities upon return to China, In re Xiu Mei Dong, A 77 977 769 (BIA May
17, 2005), rather than a prima facie showing of eligibility for asylum, see
Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) ("i.e., a realistic
chance that [s]he will be able to establish eligibility" (internal quotation
marks omitted)).
Petitioner attempted to satisfy this latter burden by offering, inter alia,
a 71-page affidavit from Dr. John Aird, which referenced, among other
things, a spring 2003 announcement by family planning officials in her
native Fujian Province that Chinese citizens with out permanent resident
status or long-term v isas who gave unauthorized birth to children in the
United States would, without exception, be subject to local family planning
rules upon return to China. As we have previously noted, we generally do not
expect the BIA, sua sponte, to identify those statements in the routinely
submitted [*5] Aird affidavit that might support a particular alien's
request for relief from removal. See Wei Guang Wang v. BIA, 437 F.3d 270,
275 (2d Cir. 2006). At the same time, however, we have concluded that
evidence of the same Fujian announcement was "too important to ignore." Tian
Ming Lin v. United States Dep't of Justice, 468 F.3d 167, 169 (2d Cir. 2006
); see also Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006) (vacating
BIA's denial of motion to reopen for failure to consider same Fujian
announcement evidence). Accordingly, mindful that the government, in light
of these documents, has itself stipulated to remand the case to [*6] the
BIA, we so order that relief.
We note, however, that Dong admits falsifying her initial asylum claim,
which was the sole basis for her "legal status" in the United States at the
time she conceived her first child. Thus, she has no asylum claim but for
the pregnancy that occurred while she remained in the United States by
fraud. Whether these circumstances preclude relief or support its
discretionary denial was an issue raised but not ruled on in prior agency
proceedings. Accordingly, we do not foreclose further consideration on
remand.
The petition for review is DENIED with respect to the BIA's March 7, but
GRANTED with respect to its May 17, 2005 order. We hereby VACATE the latter
order and REMAND for further proceedings consistent with this order.
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