Chun Mei Ying v. Holder ( 2010 )

09-0050-ag
Ying v. Holder
BIA
Holmes-Simmons, IJ
A095 460 193
A095 460 194
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 30 th day of March, two thousand ten.
PRESENT:
RALPH K. WINTER,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
_______________________________________
CHUN MEI YING, YI SAN HUANG,
Petitioners,
v. 09-0050-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, 1
Respondent.
_______________________________________
FOR PETITIONERS: Vlad Kuzmin, New York, N.Y.
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ernesto H. Molina, Jr.,
Assistant Director; Vanessa Otero
Lefort, Attorney, Office of
Immigration Litigation, United States
Department of Justice, Washington, DC
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Chun Mei Ying and her husband, Yi San Huang, natives
and citizens of the People’s Republic of China, seek review
of a December 8, 2008, order of the BIA, affirming the
February 9, 2005, decision of Immigration Judge (“IJ”)
Theresa Holmes-Simmons denying Ying’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). 2 In re Chun Mei Ying,
Yi San Huang, Nos. A095 460 193, A095 460 194 (B.I.A. Dec.
8, 2008), aff’g Nos. A095 460 193, A095 460 194 (Immig. Ct.
N.Y. City Feb. 9, 2005). We assume the parties’ familiarity
with the underlying facts and procedural history in this
case.
Under the circumstances of this case, we consider both
2
Huang was included as a derivative on his wife’s
asylum application.
2
the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008)(internal quotation marks removed). The applicable
standards of review are well-established. See Corovic v.
Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey, 529
F.3d 99, 110 (2d Cir. 2008).
The agency reasonably found that Ying did not suffer
past persecution when she was allegedly compelled to use an
intra-uterine device (“IUD”) and fined for having violated
China’s family planning policy. 3 Without more, the
involuntary insertion of an IUD is not a per se form of
persecution, and Ying failed to provide any evidence that
her alleged IUD insertion involved aggravating circumstances
rising to the level of persecution. See Matter of M-F-W- &
3
Because Huang was a derivative applicant on his
wife Ying’s application for relief from removal, the BIA
did not err in declining to consider his detention
cumulatively with Ying’s claimed harm. See Shi Liang Lin
v. U.S. Dep’t of Justice, 494 F.3d 296, 306 (2d Cir.
2007) (finding that “[n]othing in the general definition
of refugee would permit ‘any person’ who has not
personally experienced persecution or a well-founded fear
of future persecution on a protected ground to obtain
asylum”); see also In re A-K-, 24 I. & N. Dec. 275, 278
(BIA 2007) (finding that “[a]utomatically treating harm
to a family member as being persecution to others within
the family is inconsistent with the derivative asylum
provisions”).
3
L-G-, 24 I. & N. Dec. 633, 636 (BIA 2008); Xia Fan Huang v.
Holder, 591 F.3d 124,129-30 (2d Cir. 2010). Moreover, Ying
did not present any evidence before the agency that her
routine family planning fine caused her any severe economic
harm. See Matter of T-Z-, 24 I. & N. Dec. 163, 170-75 (BIA
2007); Matter of M-F-W- & L-G-, 24 I. & N. Dec. at 641; see
also Guan Shan Liao v. U.S. Dep’t. of Justice, 293 F.3d 61,
70 (2d Cir. 2002). Accordingly, the agency reasonably found
that Ying failed to demonstrate that she had suffered past
persecution in China. See Xia Fan Huang, 591 F.3d at 12-30;
Matter of M-F-W- & L-G-, 24 I. & N. Dec. at 639-41.
Because Ying did not demonstrate that she suffered past
persecution, she was not entitled to a presumption of a
well-founded fear of future persecution. See 8 C.F.R.
§ 1208.13(b)(1). Absent past persecution, an applicant may
establish eligibility for asylum by showing that she
subjectively fears persecution on account of an enumerated
ground and that her fear is objectively reasonable. See
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
On appeal, Ying argues that she demonstrated a well-founded
fear of persecution based on her claim of past persecution.
This conclusory assertion is insufficient to challenge the
4
agency’s conclusion that she failed to demonstrate a well-
founded fear of persecution because she remained unharmed in
China for several years after family planning officials
discovered her purported violation of the family planning
policy. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545
n.7 (2d Cir. 2005). Therefore, to the extent that Ying’s
applications for asylum, withholding of removal, and CAT
relief were based on her family planning claim, we find that
the agency reasonably denied those applications, see Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006), and we need not
consider the agency’s alternative finding that Ying was not
credible.
Ying also argues that she established her eligibility
for CAT relief based on her allegedly illegal departure from
China. We note that Ying did not argue before the agency
that she was eligible for CAT relief based on her illegal
departure from China. Regardless, it is well-settled that
the agency does not err in finding that a petitioner is not
“entitled to CAT protection based solely on the fact that
she is part of the large class of persons who have illegally
departed China.” Mu Xiang Lin v. U.S. Dep’t of Justice, 432
F.3d 156, 159-60 (2d Cir. 2005); see also Pierre v.
Gonzales, 502 F.3d 109, 118-19 (2d Cir. 2007). Because Ying
5
failed to provide the particularized evidence necessary to
demonstrate her eligibility for CAT relief based on her
allegedly illegal departure from China, the agency’s denial
of her application for such relief was not in error. See Mu
Xiang Lin, 432 F.3d at 160.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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