Qiaoxin Zheng v. Holder

10-1030-ag
Zheng v. Holder
BIA
DeFonzo, IJ
A096 060 634
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 5th day of April, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROSEMARY S. POOLER,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 QIAOXIN ZHENG,
15 Petitioner,
16
17 v. 10-1030-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Theodore N. Cox, New York, NY.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Richard M. Evans, Assistant
28 Director; Ann Carroll Varnon,
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Qiaoxin Zheng, a native and citizen of
6 China, seeks review of a March 15, 2010 order of the BIA
7 vacating immigration judge (“IJ”) Paul A. DeFonzo’s July 31,
8 2008, pretermitting of her application for asylum and
9 denying that application, and affirming the IJ’s denial of
10 her applications for withholding of removal and relief under
11 the Convention Against Torture (“CAT”). In re Qiaoxin
12 Zheng, No. A096 060 634 (B.I.A. March 15, 2010); aff’g No.
13 A093 060 634 (Immig. Ct. N.Y. City July 31, 2008). We
14 assume the parties’ familiarity with the underlying facts,
15 the procedural history, and the issues presented for review.
16 Under the circumstances of this case, we review both
17 the IJ’s and the BIA’s decisions. See Xue Hong Yang v. U.S.
18 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
19 applicable standards of review are well-established. See 8
20 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
21 F.3d 510, 513 (2d Cir. 2009).
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2
1 The BIA did not err in finding that Zheng failed to
2 establish a well-founded fear of persecution on account of
3 the birth of her two children, one in China and one in the
4 United States. Zheng’s claim is largely foreclosed by our
5 decision in Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.
6 2008), which found no error in the conclusion that evidence
7 similar to that submitted by Zheng is insufficient to
8 establish an alien’s prima facie eligibility for relief.
9 Id. at 164-66.
10 The report from Susanna Liu was not material to Zheng’s
11 claim because it references mandatory sterilization without
12 indicating that sterilizations are performed by force. See
13 Jian Hui Shao, 546 F.3d at 165, 172. Zheng also submitted
14 letters from family and friends claiming to have been
15 forcibly sterilized following the birth of their children in
16 China, and the affidavit from Jin Fu Chen, a man claiming to
17 have been forcibly sterilized in China after fathering
18 children in Japan. The BIA reasonably concluded that these
19 were not material because they did not detail the forced
20 sterilizations of similarly situated individuals, i.e.,
21 Chinese nationals returning to China with children who are
22 citizens of another country (the United States). See id. at
23 160-61, 170-71.
3
1 Furthermore, a reasonable fact-finder would not be
2 compelled to conclude that Zheng demonstrated a reasonable
3 possibility that the imposition of fines for the birth of
4 her children would cause her severe harm amounting to
5 economic persecution. See Matter of T-Z-, 24 I. & N. Dec.
6 163, 170-75 (B.I.A. 2007); see also Jian Hui Shao, 546 F.3d
7 at 161-62, 164 n.25. Although Zheng testified that her
8 cousin was fined 80,000 RMB for violating the family
9 planning policy, the BIA reasonably found that the fine
10 imposed on Zheng’s cousin did not compel the conclusion that
11 Zheng would face a similar fine because her cousin was not
12 similarly situated, having given birth to three children,
13 all of them in China, and the cousin did not explain how the
14 fine was calculated. See Jian Hui Shao, 546 F.3d at 161-62
15 (noting that while “in some cases, severe economic penalties
16 could be as effective as physical pressure in forcing an
17 involuntary sterilization,” the record failed to establish
18 that the petitioner himself would suffer “severe economic
19 compulsion”).
20 Zheng contends that the BIA committed reversible error
21 by failing to address her claim that she suffered past
22 persecution on account of her practice of Christianity in
23 China. However, the IJ noted on this remand that Zheng’s
4
1 past persecution claim had previously been found not
2 credible and (contrary to Zheng’s contention in her brief),
3 the IJ did not overrule that adverse credibility
4 determination in his decision. Likewise, the BIA noted that
5 Zheng’s past persecution claim was “previously resolved in a
6 prior hearing” where it was found “not credible.” Thus, the
7 BIA properly declined to revisit her past persecution claim.
8 See Matter of Patel, 16 I. & N. Dec. 600, 601 (BIA 1978).
9 Finally, the agency did not err in finding that Zheng
10 failed to establish a well-founded fear of persecution based
11 on her Christian faith. Zheng’s brief argues only that the
12 BIA erred in denying that claim in conclusory fashion.
13 However, the IJ did discuss Zheng’s well-founded fear at
14 length and determined that she failed to establish an
15 objectively reasonable fear of persecution based on her
16 religious practice in the United States. Zheng’s brief does
17 not challenge any of the IJ’s findings on this point and,
18 although the BIA affirmed the IJ’s determination in a single
19 sentence, it was not required to provide any further
20 reasoning. See 8 C.F.R. § 1003.1(e)(4) (the BIA, on appeal,
21 may affirm the IJ’s decision “without opinion”).
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5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, the pending motion
3 for a stay of removal in this petition is DISMISSED as moot.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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