Qiao Yun Pan v. Holder ( 2011 )

10-622-ag
Pan v. Holder
BIA
Hom, IJ
A088 377 874
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 16th day of March, two thousand eleven.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 ______________________________________
12
13 QIAO YUN PAN,
14 Petitioner,
15
16 v. 10-622-ag
17 NAC
18 ERIC H. HOLDER, JR.,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: James Costo, Law Office of James
24 Costo, Brooklyn, New York.
25
26 FOR RESPONDENT: Loretta E. Lynch, United States
27 Attorney; Varuni Nelson, Scott Dunn,
28 Margaret M. Kolbe, Assistant United
29 States Attorneys; Dione M. Enea,
30 Special Assistant United States
31 Attorney, Of Counsel; Eastern
32 District of New York, Brooklyn, New
33 York.
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 in part and DISMISSED in part.
5 Qiao Yun Pan, a native and citizen of the People’s
6 Republic of China, seeks review of a January 26, 2010, order
7 of the BIA affirming the April 22, 2008, decision of
8 Immigration Judge (“IJ”) Sandy K. Hom, pretermitting her
9 application for asylum and denying her applications for
10 withholding of removal and relief under the Convention
11 Against Torture (“CAT”). In re Qiao Yun Pan, No. A088 377
12 874 (B.I.A. Jan. 26, 2010), aff’g No. A088 377 874 (Immig.
13 Ct. N.Y. City Apr. 22, 2008). We assume the parties’
14 familiarity with the underlying facts and procedural history
15 in this case.
16 Under the circumstances of this case, we review the
17 decision of the IJ as supplemented by the BIA. See Yan Chen
18 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005) The
19 applicable standards of review are well-established. See
20 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
21 510, 513 (2d Cir. 2009).
22
2
1 I. Asylum
2 Title 8, Section 1158(a)(3) of the United States Code
3 provides that no court shall have jurisdiction to review the
4 agency’s finding that an asylum application was untimely
5 under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither
6 changed nor extraordinary circumstances excusing the
7 untimeliness under 8 U.S.C. § 1158(a)(2)(D). While the
8 courts retain jurisdiction, under 8 U.S.C. § 1252(a)(2)(D),
9 to review constitutional claims and “questions of law,” Pan
10 has challenged only the agency’s factual determination that
11 she failed to demonstrate extraordinary circumstances.
12 Accordingly, we dismiss Pan’s petition for review to the
13 extent it challenges the agency’s pretermission of her
14 asylum application. See Xiao Ji Chen v. U.S. Dep’t of
15 Justice, 471 F.3d 315, 329-331 (2d Cir. 2006).
16 II. Withholding of Removal and CAT Relief
17 The agency reasonably determined that Pan did not
18 suffer past persecution based on her membership in an
19 underground Roman Catholic church in China given that the
20 only harm she suffered was loss of her job and instruction
21 to register with an authorized church. See Ivanishvili v.
22 U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)
23 (stating that the harm must rise above “mere harassment”);
3
1 accord Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61,
2 67 (2d Cir. 2002); Matter of T-Z-, 24 I.&.N. Dec. 163, 172-
3 73 (BIA 2007) (economic harm must be “severe,” such that it
4 would “constitute a threat to an individual’s life or
5 freedom”). The record also supports the BIA’s determination
6 that Pan failed to demonstrate an objective fear of future
7 persecution, as the evidence showed that although China has
8 engaged in discrimination and abuse against Christians, Pan
9 failed to establish that the restrictions were severe enough
10 to constitute a likelihood a persecution. See Siewe v.
11 Gonzales, 480 F.3d 160, 167 (2d Cir. 2007); Xiao Ji Chen v.
12 U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).
13 Substantial evidence also supports the agency’s
14 determination that Pan failed to establish a clear
15 probability of future persecution based on the birth of her
16 two children. We have previously reviewed the BIA’s
17 consideration of the State Department reports and family
18 planning regulations submitted in this case and have found
19 no error in its conclusion that such evidence was
20 insufficient to establish an objectively reasonable fear of
21 persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
22 169-72 (2d Cir. 2008) (“[U]nattributed ‘reports’ of forced
23 sterilization that lack[] any specificity as to number or
24 circumstance . . . d[o] not, by themselves, persuasively
4
1 demonstrate a reasonable possibility that [an applicant]
2 would face such persecution.”).
3 Because Pan was unable to establish the objective
4 likelihood of persecution needed to make out a withholding
5 of removal claim based on either her religion or the births
6 of her two children, she was necessarily unable to establish
7 a likelihood of torture. See Paul v. Gonzales, 444 F.3d
8 148, 155-56 (2d Cir. 2006). To the extent Pan asserts that
9 she will be tortured as a “returning illegal emigrant,” she
10 has pointed to no specific evidence that similarly situated
11 individuals are tortured when returned to China. But see
12 Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.
13 2003) (holding that the relevant inquiry is whether someone
14 in the applicant’s particular circumstances would be
15 persecuted upon return to China because of an illegal
16 departure).
17 For the foregoing reasons, the petition for review is
18 DENIED in part and DISMISSED in part. As we have completed
19 our review, any stay of removal that the Court previously
20 granted in this petition is VACATED, and any pending motion
21 for a stay of removal in this petition is DISMISSED as moot.
22
23
24
5
1 Any pending request for oral argument in this petition is
2 DENIED in accordance with Federal Rule of Appellate
3 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
6