Zhu Qing Yang v. Holder , 444 F. App'x 488 ( 2011 )

10-842-ag BIA
Yang v. Holder Schoppert, IJ
A094 813 695
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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
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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 9th day of November, two thousand eleven.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.
_________________________________________
ZHU QING YANG,
Petitioner,
v. 10-842-ag (L)
10-3588-ag (Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Richard Tarzia, Belle Mead, New
Jersey.
.
FOR RESPONDENT: Tony West, Assistant Attorney
General; John S. Hogan, Senior
Litigation Counsel; David H.
Wetmore, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petitions for
review are DENIED.
Petitioner Zhu Qing Yang, a native and citizen of the
People’s Republic of China, seeks review of a decision of
the BIA reversing the decision of Immigration Judge (“IJ”)
Douglas B. Schoppert and denying her application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Zhu Qing Yang, No. A094 813
695 (BIA Feb. 17, 2010), rev’g No. A094 813 695 (Immig. Ct.
N.Y. City Mar. 11, 2008). Yang additionally seeks review of
the BIA’s denial of her motion to reopen. In re Zhu Qing
Yang, No. A094 813 695 (BIA Aug. 23, 2010). We assume the
parties’ familiarity with the underlying facts and
procedural history of the case. We review the agency's
factual findings under the substantial evidence standard,
and questions of law de novo. See Aliyev v. Mukasey, 549
F.3d 111, 115 (2d Cir. 2008).
I. Family Planning Claim
To establish eligibility for asylum, an applicant must
establish past persecution or a well-founded fear of future
persecution. Ramsameachire v. Ashcroft, 357 F.3d 169, 178
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(2d Cir. 2004). The BIA has defined persecution as a
“threat to the life or freedom of, or the infliction of
suffering or harm upon, those who differ in a way regarded
as offensive.” Matter of Acosta, 19 I. & N. Dec. 211, 222
(BIA 1985), overruled, in part, on other grounds, INS v.
Cardoza-Fonseca, 480 U.S. 421, 423 (1987); accord
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d
Cir. 2006). Economic harm may constitute persecution;
however, “an applicant for asylum must demonstrate a severe
economic disadvantage.” Matter of T-Z-, 24 I. & N. Dec.
163, 173 (BIA 2007) (internal quotation marks omitted).
Indeed, “[t]he economic difficulties must be above and
beyond those generally shared by others in the country of
origin and involve noticeably more than mere loss of social
advantages or physical comforts.” Id.; see also Guan Shan
Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 67 (2d Cir.
2002) (holding that an asylum applicant must show at least a
“deliberate imposition of a substantial economic
disadvantage” in order for the harm to constitute economic
persecution).
Contrary to Yang’s assertion, the BIA did not engage in
improper de novo review in concluding that she had failed to
establish a well-founded fear of future persecution for
violating China’s family planning policy. The BIA
“review[s] questions of law, discretion, and judgment and
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all other issues in appeals from decisions of immigration
judges de novo.” 8 C.F.R. § 1003.1(d)(3)(ii). The BIA may
also take administrative notice of official documents not
considered by the IJ. Id. § 1003.1(d)(3)(iv). Accordingly,
the BIA did not err in recognizing that the United States
Profile of Asylum Claims and Country Conditions for China
indicated that United States citizens, such as Yang’s
children, may travel to China on United States passports,
and their parents need not register them as permanent
residents in China, thus avoiding any fines or penalties
associated with violation of the family planning policy.
The BIA also reasonably concluded that, even accepting,
arguendo, the IJ’s findings that Yang would be deemed in
violation of the policy and assessed a sizeable fine, those
facts did not show as a matter of law that Yang would suffer
severe economic harm. As the BIA noted, evidence in the
record indicated that the severity of any fine would be
significantly mitigated by Yang’s ability to pay it in
installments. See 8 C.F.R. § 1003.1(d)(3)(ii) (“The Board
may review questions of law . . . de novo”). Accordingly,
the BIA did not err in concluding that Yang failed to show a
well-founded fear of economic persecution. Furthermore,
although Yang continues to maintain, contrary to the IJ’s
finding, that she risks sterilization upon her return to
China, the record does not compel that conclusion.
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II. Motion to Reopen
The BIA did not abuse its discretion in denying Yang’s
motion to reopen based on her failure to establish prima
facie eligibility for relief. See INS v. Abudu, 485 U.S.
94, 104 (1988) (holding that the BIA may deny a motion to
reopen on the ground that the movant has not established
prima facie eligibility for the underlying relief sought);
Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (reviewing
BIA’s denial of a motion to reopen or reconsider for abuse
of discretion).
As the BIA found, Yang failed to establish her prima
facie eligibility for asylum, because she did not submit any
evidence showing that Chinese officials were aware, or would
become aware, of her religious activities. See Hongsheng
Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (“Put
simply, to establish a well-founded fear of persecution in
the absence of any evidence of past persecution, an alien
must make some showing that authorities in his country of
nationality are either aware of his activities or likely to
become aware of his activities.”). Moreover, the country
conditions information that Yang submitted did not
compellingly demonstrate that Mormons were mistreated in
China. None of the materials mentioned Mormonism
specifically, and a U.S. State Department report included in
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the record indicated that the “treatment of unregistered
[religious] groups varied significantly from region to
region.”
The BIA’s exercise of its discretion was proper in any
case, because Yang also failed to submit a new asylum
application with her motion to reopen, as required to do
under the regulations. See 8 C.F.R. § 1003.2(c)(1) (“A
motion to reopen proceedings for the purpose of submitting
an application for relief must be accompanied by the
appropriate application for relief and all supporting
documentation.”).
For the foregoing reasons, the petitions for review are
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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