Yinghua Han v. United States Department of Justice ( 2011 )

10-1357-ag
Han v. US DOJ
BIA
Abrams, IJ
A088 372 173
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 23rd day of August, two thousand eleven.
PRESENT:
JOHN M. WALKER, JR.,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_______________________________________
YINGHUA HAN,
Petitioner,
v. 10-1357-ag
NAC
UNITED STATES DEPARTMENT OF JUSTICE,
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondents.
_______________________________________
FOR PETITIONER: Dehai Zhang, Flushing, New York.
FOR RESPONDENTS: Tony West, Assistant Attorney General;
Douglas E. Ginsburg, Assistant Direc-
tor; Paul Fiorino, Senior Litigation
Counsel, Office of Immigration Litiga-
tion, Civil Division, U.S. Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED in part and DISMISSED in part.
Petitioner Yinghua Han, a native and citizen of the
People’s Republic of China, seeks review of a March 17, 2010,
order of the BIA affirming the August 14, 2008, decision of
Immigration Judge (“IJ”) Steven R. Abrams, pretermitting her
asylum application as untimely and denying her application for
withholding of removal and relief under the Convention Against
Torture (“CAT”). In re Yinghua Han, No. A088 372 173 (B.I.A.
Mar. 17, 2010), aff’g No. A088 372 173 (Immig. Ct. N.Y. City
Aug. 14, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
Under the circumstances of this case, we review both the
IJ’s and the BIA’s opinions. See Zaman v. Mukasey, 514 F.3d
233, 237 (2d Cir. 2008). The applicable standards of review
are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
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I. Pretermission of Asylum
Contrary to Han’s arguments, the agency did not commit
legal error in its pretermission of her asylum application as
untimely. There is no merit to Han’s argument that the agency
failed to apply a legal standard, as Han was required to
demonstrate “to the satisfaction of the Attorney General” that
extraordinary circumstances excused her untimely filing. 8
U.S.C. § 1158(a)(2)(D). Furthermore, the agency considered
Han’s argument that she feared “revenge” if she applied for
asylum, and it was not required to explicitly address the
evidence of her son’s illness. See Jian Hui Shao v. Mukasey,
546 F.3d 138, 169 (2d Cir. 2008) (rejecting the notion that
the agency must “expressly parse or refute on the record each
individual argument or piece of evidence offered by the
petitioner” (quoting Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87
(2d Cir. 2007)).
Furthermore, Han’s arguments that the record demonstrates
that she established exceptional circumstances sufficient to
excuse her untimely filing, raise neither a constitutional
claim nor a question of law. See Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 329-31 (2d Cir. 2006). Accordingly,
we lack jurisdiction to review these arguments. See 8 U.S.C.
§ 1252(a)(2)(D).
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II. Withholding of Removal and CAT Relief
The agency reasonably concluded that Han failed to meet
her burden of demonstrating past persecution based on her
claim that she was physically forced to have an abortion. Han
testified that family planning officials came to her home and
“dragged” her to the hospital, but in response to the IJ’s
request for clarification of why she omitted that detail from
her asylum application, Han testified that she decided to have
an abortion to avoid a fine and to prevent her husband from
losing his job. Han also testified that her husband was angry
with her for having an abortion. Moreover, as the BIA found,
although Han submitted an abortion certificate in support of
her claim, a State Department report indicated that abortion
certificates are issued to recipients of voluntary abortions.
Accordingly, the agency reasonably determined that there was
insufficient evidence that the abortion resulted from physical
force.
Furthermore, the agency reasonably found that Han failed
to establish that the threat of economic harm for refusing the
abortion amounted to force. The BIA found that Han presented
no evidence indicating “the amount she would be fined, the
income they would lose if her husband was fired, or their
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assets in China for the [IJ] to assess in determining whether
the threatened harm would be persecutory . . . .” Because Han
did not present evidence regarding her personal financial
circumstances in relation to the threatened economic harm, it
was reasonable for the BIA to conclude that she did not
demonstrate economic persecution. See Jian Hui Shao, 546 F.3d
at 161-61; Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d
61, 70 (2d Cir. 2002). Accordingly, a reasonable fact-finder
would not be compelled to find that Han met her burden of
establishing that she was forced to have an abortion, as
required to establish past persecution based on an abortion.
See 8 U.S.C. § 1101(a)(42). We thus affirm the BIA’s finding.
See Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000).
Additionally, the agency did not err in finding that Han
failed to meet her burden of demonstrating a well-founded fear
of future persecution. To the extent Han claims that she has
a well-founded fear of persecution because she might have more
children, she failed to point to any particular evidence in
the record to support her claim that her fear of future
persecution was objectively reasonable. See Jian Xing Huang
v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that, absent
solid support in the record for the petitioner’s assertion
that he would be subjected to persecution, his fear was
“speculative at best”).
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Accordingly, substantial evidence supports the agency’s
determination that Han failed to establish past persecution or
a well-founded fear of future persecution. The agency thus
did not err in denying withholding of removal. 8 U.S.C.
§ 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.
2008). Because Han was unable to show the objective
likelihood of persecution needed to make out a claim for
withholding of removal based on her alleged forced abortion,
she was necessarily unable to succeed on her claim for CAT
relief, which rested on the same factual predicate. See Paul
v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. As we have completed
our review, any stay of removal that the Court previously
granted in this petition is VACATED, and any pending motion
for a stay of removal in this petition is DENIED as moot. Any
pending request for oral argument in this petition is DENIED
in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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