Xiang Yong Qiu v. Holder ( 2012 )

11-1655-ag
Qiu v. Holder
BIA
Page, IJ
A098 895 565
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 28th day of March, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROBERT D. SACK,
10 REENA RAGGI,
11 Circuit Judges.
12 _____________________________________
13
14 XIANG YONG QIU,
15 Petitioner,
16 11-1655-ag
17 v. NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jan Potemkin, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Francis W. Fraser, Senior
28 Litigation Counsel; Marion E.
29 Guyton, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner, Xiang Yong Qiu, a native and citizen of
6 China, seeks review of a March 29, 2011, decision of the BIA
7 affirming the February 19, 2009, decision of Immigration
8 Judge (“IJ”) Alan L. Page denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Xiang Yong Qiu,
11 No. A098 895 565 (B.I.A. Mar. 29, 2011), aff’g No. A098 895
12 565 (Immig. Ct. N.Y. City Feb. 19, 2009). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history of the case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
20 F.3d 510, 513 (2d Cir. 2009).
21 Qiu contends that he established past persecution and a
22 well-founded fear of future persecution on account of his
23 resistance to China’s family planning policy. As the agency
2
1 noted, Qiu was not eligible for asylum based on the forced
2 sterilization of his wife. See Shi Liang Lin v. U.S. Dep’t
3 of Justice, 494 F.3d 296, 309 (2d Cir. 2007) (en banc).
4 Substantial evidence also supports its conclusion that Qiu
5 did not establish that the harm he personally suffered or
6 will suffer rises to the level of persecution.1
7 Qiu testified that after the birth of his first child
8 he and his wife were fined 15,000 renminbi, of which he paid
9 3,000, and that he feared he would be harmed by officials if
10 he did not pay the rest of the fine. The agency reasonably
11 concluded that this fine did not constitute economic
12 persecution because it was not enforced against Qiu. See Xu
13 Ling Chen v. Gonzales, 489 F.3d 861, 863 (7th Cir. 2007)
14 (noting that a fine which is not enforced might not
15 constitute persecution). While the country conditions
16 evidence indicates that in some instances individuals have
17 been detained for failure to comply with such fines, the
18 agency reasonably concluded that Qiu did not have a well-
19 founded fear that he would be so punished because officials
1
Because we find no error in the agency’s conclusion
that Qiu did not establish past persecution or a well-
founded fear of future persecution, we do not address its
conclusion that he did not demonstrate other resistance
to the family planning policy.
3
1 never enforced the fine against him during the years he
2 lived in China and had not punished his wife for failure to
3 pay the fine. See Melgar de Torres v. Reno, 191 F.3d 307,
4 313 (2d Cir. 1999) (finding that where asylum applicant’s
5 family continued to live safely in applicant’s native
6 country, claim of well-founded fear was diminished).
7 Moreover, the BIA reasonably concluded that Qiu did not
8 establish that the fine was such a severe burden that it
9 rose to the level of persecution as he did not present the
10 agency with any evidence regarding his income or net worth
11 in China. See Guan Shan Liao v. U.S. Dep’t of Justice, 293
12 F.3d 61, 70 (2d Cir. 2002). While a State Department report
13 describes the typical income of rural workers in Lianjiang
14 county, the agency was not required to infer from that
15 general report the impact the fine would have on Qiu’s
16 personal economic situation. See Siewe v. Gonzales, 480
17 F.3d 160, 167 (2d Cir. 2007).
18 Considering the impact of the fines imposed on Qiu
19 cumulatively with the emotional loss he suffered as a result
20 of his wife’s forced sterilization, we find no error in the
21 agency’s conclusion that he did not establish past
22 persecution or a well-founded fear of future persecution.
23 See Manzur v. DHS, 494 F.3d 281, 290 (2d Cir. 2007)
4
1 (providing that in determining whether harms constitute
2 persecution they should be considered cumulatively); Shi
3 Liang Lin, 494 F.3d at 309 (noting that “an individual whose
4 spouse undergoes . . . involuntary sterilization may suffer
5 a profound emotional loss”). Accordingly, the agency did
6 not err in denying Qiu’s applications for asylum and
7 withholding of removal. See Ramsameachire v. Ashcroft, 357
8 F.3d 169, 178 (2d Cir. 2004). Qiu does not challenge the
9 denial of CAT relief.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
5