Xian Ming Jiang v. Holder , 430 F. App'x 39 ( 2011 )

10-1368-ag
Jiang v. Holder
BIA
Van Wyke, IJ
A098 278 920
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
4 New York, on the 21st day of July, two thousand eleven.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 XIAN MING JIANG,
14 Petitioner,
15
16 v. 10-1368-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Dehai Zhang, Flushing, New York.
24 FOR RESPONDENT: Tony West, Assistant Attorney
25 General; Emily Anne Radford,
26 Assistant Director; Sarah L. Vuong,
27 Trial Attorney, Office of
28 Immigration Litigation, Civil
29 Division, United States Department
30 of Justice, Washington, D.C.
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 Petitioner Xian Ming Jiang, a native and citizen of the
6 People’s Republic of China, seeks review of a March 31,
7 2010, order of the BIA reversing the July 16, 2008, decision
8 of Immigration Judge (“IJ”) William Van Wyke, granting his
9 application for asylum. In re Xian Ming Jiang, No. A098 278
10 920 (B.I.A. Mar. 31, 2010), rev’g No. A098 278 920 (Immig.
11 Ct. N.Y.C. July 16, 2008). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 of the case.
14 Under the circumstances of this case, we have reviewed
15 only the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d
16 268, 271 (2d Cir. 2005). The applicable standards of review
17 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
18 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
19 As an initial matter, the BIA’s application of Shi
20 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d
21 Cir. 2007), and Matter of J-S-, 24 I.&.N. Dec. 520, 529
22 (Att’y Gen. 2008), did not violate Jiang’s due process
2
1 rights. See Shou Wei Jin v. Holder, 572 F.3d 392, 397 (7th
2 Cir. 2009); Yu v. U.S. Att’y. Gen., 568 F.3d 1328, 1334
3 (11th Cir. 2009). Indeed, the BIA appropriately applied the
4 law in effect at the time it entered its decision. See
5 8 C.F.R. § 1003.1(d)(3)(ii); see also NLRB v. Coca-Cola
6 Bottling Co., 55 F.3d 74, 78 (2d Cir. 1995) (“Appellate
7 courts ordinarily apply the law in effect at the time of the
8 appellate decision”). Moreover, Jiang had the opportunity
9 to present his claim anew after the issuance of Shi Liang
10 Lin. See Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.
11 2007) (finding that “to establish a violation of due
12 process, an alien must show ‘that she was denied a full and
13 fair opportunity to present her claims’”) (citation
14 omitted)).
15 The BIA reasonably concluded that Jiang failed to
16 demonstrate past persecution or a well-founded fear of
17 future persecution. Although Jiang claimed that he suffered
18 past persecution, he did not allege that he was physically
19 harmed or mistreated by family planning officials. See
20 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
21 Cir. 2006) (holding that to constitute persecution, the harm
22 must be sufficiently severe, rising above “mere
3
1 harassment”). Furthermore, the BIA properly held that Jiang
2 was not per se eligible for the relief he sought based on
3 his wife’s forced abortion. See Shi Liang Lin, 494 F.3d at
4 308; see also Gui Yin Liu v. INS, 508 F.3d 716, 723 (2d Cir.
5 2007). Moreover, Jiang failed to present any evidence
6 demonstrating that he suffered a substantial economic
7 disadvantage based on the imposition of fines for his
8 violation of the family planning policy. See Guan Shan Liao
9 v. U.S. Dep’t of Justice, 293 F.3d 61, 69-70 (2d Cir. 2002);
10 see also Matter of T-Z-, 24 I. & N. Dec. 163, 171-175
11 (B.I.A. 2007).
12 Substantial evidence also supports the BIA’s
13 determination that Jiang failed to establish a well-founded
14 fear of persecution because he had two children. See Jian
15 Hui Shao v. Mukasey, 546 F.3d 138, 158-68 (2d Cir. 2008);
16 see also Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d
17 Cir. 2004) (holding that absent past persecution, an alien
18 can demonstrate eligibility for asylum based on a well-
19 founded fear of future persecution by demonstrating that he
20 or she subjectively fears persecution and that this fear is
21 objectively reasonable). In Jian Hui Shao, we reviewed the
22 BIA’s consideration of the same or similar evidence as that
4
1 submitted by Jiang, including official documents from Fujian
2 Province relating to the family planning regulations, State
3 Department reports, and newspaper articles, and we found no
4 error in the BIA’s conclusion that such evidence was
5 insufficient to establish an objectively reasonable fear of
6 persecution. 546 F.3d at 169-72 (noting that “[w]e do not
7 ourselves attempt to resolve conflicts in record evidence, a
8 task largely within the discretion of the agency”).
9 Moreover, the evidence Jiang submitted, including the
10 translations of Chinese law and policies relating to family
11 planning, did not establish that his claimed fear of forced
12 sterilization was objectively reasonable because it merely
13 referenced the family planning policy’s mandatory
14 sterilization requirement and did not indicate that
15 sterilizations are performed by force. Additionally, as the
16 BIA noted, the notice Jiang’s wife received from the Birth
17 Control Office did not state that either he or his wife
18 would be forcibly sterilized. See Jian Xing Huang v. INS,
19 421 F.3d 125, 129 (2d Cir. 2005) (holding that, absent solid
20 support in the record for the petitioner’s assertion that he
21 would be subjected to persecution, his fear was “speculative
22 at best”).
5
1 Lastly, the BIA properly conducted de novo review in
2 answering the question of whether Jiang met his burden of
3 proof in establishing that he had a reasonable fear of
4 sterilization if he returned to China. As the underlying
5 facts in the record were not in dispute, the BIA had the
6 authority to address “questions of law” regarding Jiang’s
7 eligibility for relief. See 8 C.F.R. § 1003.1(d)(3)(i) and
8 (ii), see also Jian Hui Shao, 546 F.3d at 162 (concluding
9 that the BIA did not erroneously conduct de novo review of
10 the IJ’s factual findings by making “a legal determination
11 that, while [petitioner’s] credible testimony was sufficient
12 to demonstrate a genuine subjective fear of future
13 persecution, more was needed to demonstrate the objective
14 reasonableness of that fear”); Kambolli v. Gonzales, 449
15 F.3d 454, 457 (2d Cir. 2006) (evaluating de novo the
16 agency’s “legal conclusion” that a petitioner did not
17 demonstrate a well-founded fear of persecution based on
18 “facts established in the record”).
19 Accordingly, because the BIA’s determination that Jiang
20 failed to show past persecution or a well-founded fear of
21 future persecution is supported by substantial evidence,
22 8 U.S.C. § 1252(b)(4)(B); see Corovic v. Mukasey, 519 F.3d
61 90, 95 (2d Cir. 2008), the BIA did not err in denying his
2 asylum application.
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2) and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
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