Lu Jin Hua v. Holder ( 2012 )

11-2920-ag
Hua v. Holder
BIA
Hom, IJ
A088 917 233
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 24th day of July, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 RAYMOND J. LOHIER, Jr.,
10 Circuit Judges.
11 _________________________________________
12
13 LU JIN HUA,
14 Petitioner,
15
16 v. 11-2920-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Michael P. Lindemann,
28 Assistant Director; Glen T. Jaeger,
29 Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Lu Jin Hua, a native and citizen of the
10 People’s Republic of China, seeks review of a June 22, 2011,
11 order of the BIA, affirming the March 24, 2009, decision of
12 an Immigration Judge (“IJ”) which denied her application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Lu Jin Hua, No.
15 A088 917 233 (B.I.A. June 22, 2011), aff’g No. A088 917 233
16 (Immig. Ct. N.Y. City Mar. 24, 2009). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 We review the decision of the IJ as modified by the
20 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
21 2005). The applicable standards of review are well
22 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
23 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
24
2
1 I. Past Harm
2 To establish past persecution “on account of” a
3 political opinion, an asylum applicant must demonstrate that
4 the persecution arises from her own political opinion,
5 actual or imputed. See INS v. Elias-Zacarias, 502 U.S. 478,
6 482 (1992). The applicant must also show, through direct or
7 circumstantial evidence, that the persecutor’s motive to
8 persecute arises from the applicant’s political belief. See
9 Rodas Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010).
10 The agency reasonably determined that Hua had failed to
11 demonstrate that the harm she suffered was on account of a
12 protected ground because Hua testified that Chinese
13 authorities detained her for questioning and interrogation
14 as to her mother’s whereabouts, and that she was released
15 with instructions to report back her mother’s location, not
16 that the authorities had targeted her because they thought
17 she was a Falun Gong practitioner. See Tao Jiang v.
18 Gonzales, 500 F.3d 137, 142 (2d Cir. 2007) (finding no nexus
19 to a protected ground where alien adduced no evidence that
20 government actors imputed to alien his mother’s political
21 opinion).
22
3
1 The BIA also did not err in determining that the harm
2 Hua alleged–being arrested, detained, and slapped twice in
3 the face–did not rise to the level of persecution,
4 particularly because Hua did not testify that she required
5 medical treatment or suffered any lasting physical effects
6 as a result. See Jian Qiu Liu v. Holder, 632 F.3d 820, 822
7 (2d Cir. 2011) (no error in BIA’s finding that a beating
8 resulting in minor bruising for which medical treatment was
9 not sought did not rise to the level of persecution);
10 Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir. 2006)
11 (brief periods of detention do not constitute persecution).
12 II. Well-Founded Fear
13 Hua also argues that she has demonstrated a well-
14 founded fear of persecution because she is a member of a
15 social group consisting of the families of Falun Gong
16 practitioners, and because the Chinese government will
17 persecute her if she is removed. The agency reasonably
18 found that Hua failed to meet her burden of proof regarding
19 her Falun Gong practice, because her witness could not tell
20 the difference between Falun Gong and other exercises and
21 had not attended any demonstrations with her. See 8 U.S.C.
22 § 1158(b)(1)(B)(ii); Diallo v. INS, 232 F.3d 279, 285-86 (2d
4
1 Cir. 2000) (deferring to the BIA’s rule that “[w]hile
2 consistent, detailed, and credible testimony may be
3 sufficient to carry the alien’s burden, evidence
4 corroborating [her] story, or an explanation for its
5 absence, may be required where reasonably expected.”); Xiao
6 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
7 2006) (the weight afforded to an applicant’s evidence in
8 proceedings lies largely within the discretion of the
9 agency). The agency did not err in declining to credit
10 Hua’s only additional proof of her Falun Gong practice, as
11 her photographs were undated and only of her practicing
12 Falun Gong in her home. Id.13 Finally, the agency reasonably rejected Hua’s claim
14 that she will be persecuted on account of her illegal
15 departure from China because she was previously permitted to
16 leave China passing through checkpoints using her own
17 passport and presented no other evidence to support this
18 claim. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 133-34
19 (2d Cir. 2003) (mandating a case-by-case factual inquiry
20 into whether an illegal departure would result in
21 persecution). Ultimately, because the agency did not err in
22 concluding that Hua failed to establish past persecution or
23 a well-founded fear of persecution if removed to China, it
5
1 did not err in deying asylum, withholding of removal, and
2 CAT relief as the claims shared the same factual predicate.
3 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006)
4 (withholding of removal); Xue Hong Yang v. U.S. Dep’t of
5 Justice, 426 F.3d 520, 523 (2d Cir. 2006) (CAT).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
6