Yong Zhong Zheng v. Holder ( 2010 )

07-5776-ag
Zheng v. Holder
BIA
Nelson, IJ
A095 457 649
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 27 th day of July, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT A. KATZMANN,
9 REENA RAGGI,
10 Circuit Judges.
11 _______________________________________
12
13 YONG ZHONG ZHENG,
14 Petitioner,
15
16 v. 07-5776-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL, *
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Feng Li, Moslemi & Associates, New York,
24 New York.
25
26
*
Pursuant to Fed. R. App. P 43(e)(1), Attorney
General Eric H. Holder, Jr. is automatically substituted
for former Attorney General Michael B. Mukasey as
respondent in this case.
1 FOR RESPONDENT: Gregory G. Katsas, Acting Assistant
2 Attorney General, Civil Division; James
3 A. Hunolt, Senior Litigation Counsel;
4 Craig A. Newell, Jr., Trial Attorney,
5 Office of Immigration Litigation, Civil
6 Division, United States Department of
7 Justice, Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Yong Zhong Zheng, a native and citizen of
14 the People’s Republic of China, seeks review of a December
15 7, 2007, order of the BIA affirming the August 3, 2004,
16 decision of Immigration Judge (“IJ”) Barbara A. Nelson on
17 the ground that Zheng did not carry his burden of
18 demonstrating eligibility for asylum, withholding of
19 removal, and relief under the Convention Against Torture
20 (“CAT”). In re Yong Zhong Zheng, No. A095 457 649 (B.I.A.
21 Dec. 7, 2007), aff’g No. A095 457 649 (Immig. Ct. N.Y. City
22 Aug. 3, 2004). We assume the parties’ familiarity with the
23 underlying facts and procedural history in this case.
24 Under the circumstances of this case, we review the
25 IJ’s decision, as modified by the BIA decision, i.e., minus
26 the arguments for denying relief that were rejected by the
2
1 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
2 520, 522 (2d Cir. 2005). The applicable standards of review
3 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Jian
4 Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008);
5 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
6 I. Past Persecution
7 The agency found that Zheng failed to establish past
8 persecution because: (1) despite threats of sterilization,
9 Zheng suffered no physical harm in China; and (2) the
10 economic harm he suffered did not rise to the level of
11 persecution. Zheng’s challenges to these findings are not
12 persuasive. We “previously have rejected . . . claims
13 [that] ‘unfulfilled’ threats” constitute persecution. See
14 Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir.
15 2006). With respect to economic persecution, Zheng produced
16 no evidence that would make it possible to evaluate his
17 personal financial circumstances in relation to the fines
18 imposed by the government and the consequences of losing his
19 job. See Jian Hui Shao, 546 F.3d at 161-62; see also Guan
20 Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.
21 2002). We therefore find no error in the agency’s
22 determination that Zheng failed to establish past
23 persecution.
3
1 II. Well-Founded Fear of Future Persecution
2 In the absence of past persecution, an alien can
3 demonstrate eligibility for relief if he can show that he
4 has a well-founded fear of future persecution on account of
5 a protected ground. 8 C.F.R. § 1208.13(b)(2)(i). Here,
6 however, the agency reasonably found that Zheng provided
7 insufficient evidence to establish a well-founded fear of
8 future persecution on account of his alleged violation of
9 China’s family planning policy.
10 We find no support for Zheng’s argument that the BIA
11 failed to adequately consider the evidence of record, and we
12 generally accord deference to the agency’s evaluation of
13 such evidence. See Xiao Ji Chen v. U.S. Dep’t of Justice,
14 471 F.3d 315, 342 (2d Cir. 2006). The IJ reasonably
15 afforded the unauthenticated letters Zheng submitted
16 diminished weight, as she found that they “were clearly
17 provided and were prepared for litigation purposes,” and
18 contained “no indicia of their reliability.” I.J. Op. at
19 14; see Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214
20 & n.5 (BIA 2010) (holding that unsigned, unauthenticated
21 documents, from a “Street Resident Committee” and “Villager
22 Committee,” that fail to identify the authors, are entitled
4
1 to minimal weight, especially when the documents were
2 allegedly obtained from the authorities specifically for the
3 purpose of the hearing on the applicant’s behalf).
4 Moreover, the agency did not err by summarily considering
5 the relevant U.S. State Department reports, evidence it has
6 considered time and again in virtually identical cases. See
7 Jian Hui Shao, 546 F.3d at 166; see also Wei Guang Wang v.
8 BIA, 437 F.3d 270, 274 (2d Cir. 2006). Thus, substantial
9 evidence supports the agency’s determination that Zheng
10 failed to establish a well-founded fear of future
11 persecution. As Zheng was unable to meet his burden for
12 asylum, he necessarily failed to meet the higher burden
13 required for withholding of removal. 1 See Paul v. Gonzales,
14 444 F.3d 148, 156 (2d Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of
17 removal that the Court previously granted in this petition
1
Contrary to the government’s assertion that Zheng
failed to exhaust any challenge to the agency’s denial of
his claim for withholding of removal, because the BIA
considered that claim, we deem it to have been exhausted.
See Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d Cir.
2006). Because Zheng does not challenge the agency’s
denial of his CAT claim before this Court, we deem that
argument abandoned. See Yueqing-Zhang v. Gonzales, 426
F.2d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).
5
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
6