Wen Xiu Jiang v. Holder

08-2062-ag
Jiang v. Mukasey
BIA
Morace, IJ
A95 710 258
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 3 rd day of February, two thousand ten.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 WEN XIU JIANG,
14 Petitioner,
15
16 v. 08-2062-ag
17 NAC
18 ERIC H. HOLDER, JR., 1 UNITED STATES
19 ATTORNEY GENERAL,
20
21 Respondent.
22 ______________________________________
23
24
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 a respondent in this case.
1 FOR PETITIONER: Farah Loftus, Century City,
2 California.
3
4 FOR RESPONDENT: Gregory G. Katsas, Assistant
5 Attorney General, Ernesto H. Molina,
6 Jr., Assistant Director, Anthony P.
7 Nicastro, Senior Litigation Counsel,
8 Office of Immigration Litigation,
9 Civil Division, United States
10 Department of Justice, Washington,
11 D.C.
1213 UPON DUE CONSIDERATION of this petition for review of a
14 Board of Immigration Appeals (“BIA”) decision, it is hereby
15 ORDERED, ADJUDGED, AND DECREED that the petition for review
16 is DENIED, in part, and DISMISSED, in part.
17 Petitioner Wen Xiu Jiang, a native and citizen of
18 China, seeks review of an April 1, 2008 order from the BIA
19 affirming the June 5, 2006 decision of Immigration Judge
20 (“IJ”) Philip L. Morace denying his applications for asylum,
21 withholding of removal, and relief under the Convention
22 Against Torture (“CAT”). In re Wen Xiu Jiang, No. A 95 710
23 258 (B.I.A. Apr. 1, 2008), aff’g No. A 95 710 258 (Immig.
24 Ct. N.Y. City June 5, 2006). We assume the parties’
25 familiarity with the underlying facts and procedural history
26 in this case.
27 When the BIA adopts the decision of the IJ and
28 supplements the IJ’s decision, this Court reviews the
2
1 decision of the IJ as supplemented by the BIA. See Yan Chen
2 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). This Court
3 reviews the agency’s factual findings under the substantial
4 evidence standard, treating them as “conclusive unless any
5 reasonable adjudicator would be compelled to conclude to the
6 contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Manzur v.
7 U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.
8 2007).
9 The agency properly found that Jiang failed to
10 demonstrate that he suffered past persecution. In Shi
11 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.
12 2007) (en banc), this Court determined that under 8 U.S.C.
13 § 1101(a)(42) an individual is not per se eligible for
14 asylum based on the forced abortion or sterilization of a
15 spouse or partner because “applicants can become candidates
16 for asylum relief only based on persecution that they
17 themselves have suffered or must suffer.” See 494 F.3d at
18 308. The Court held that such individuals must seek relief
19 under the two remaining categories of 8 U.S.C. §
20 1101(a)(42), providing protection to applicants who
21 demonstrate persecution based on their “other resistance to
22 a coercive population control program” or “a well founded
23 fear that [they] will be . . . subject to persecution for
3
1 such . . . resistance . . . .” Id. at 309-10 (quoting 8
2 U.S.C. § 1101(a)(42)).
3 In his brief before this Court, Jiang argues for the
4 first time that he is “resistant” to China’s family planning
5 policy. Even if we were to consider Jiang’s resistance
6 argument, 2 it fails where he did not point to any part of
7 the record demonstrating that he resisted China’s family
8 planning policies. See Matter of S-L-L, 24 I.& N. Dec. 1,
9 10 (B.I.A. 2006).
10 The agency also properly found that Jiang failed to
11 establish that he has a well-founded fear of future
12 persecution on the basis of his newly adopted practice of
13 Falun Gong. To establish asylum eligibility based on future
14 persecution, an applicant must show that he or she
15 subjectively fears persecution and that this fear is
16 objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d
17 169, 178 (2d Cir. 2004). A fear is not objectively
18 reasonable if it lacks “solid support” in the record and is
19 merely “speculative at best.” Jian Xing Huang v. INS, 421
2
We need not decide whether Jiang’s other resistance
argument is an unexhausted issue as discussed in Lin
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d
Cir. 2007), because the argument is plainly without
merit.
4
1 F.3d 125, 129 (2d Cir. 2005).
2 The agency found that Jiang’s fear of persecution on
3 account of being a Falun Gong practitioner was too
4 speculative to merit relief. In his brief before this
5 Court, Jiang asserts that he is entitled to relief because
6 he is a devoted Falun Gong practitioner and, if he returns
7 to China, he would be restricted from practicing Falun Gong
8 and possibly detained by authorities because of China’s
9 pattern and practice of persecuting Falun Gong
10 practitioners. Even assuming the existence of such a
11 pattern and practice, Jiang fails to meaningfully argue that
12 Chinese authorities are likely to become aware of his
13 practice of Falun Gong. To demonstrate a well-founded fear
14 of persecution, “an applicant must establish that his [or
15 her] putative persecutor is, or could become, aware of the
16 applicant’s possession of the disfavored belief or
17 characteristic.” Hongsheng Leng v. Mukasey, 528 F.3d 135,
18 142 (2d Cir. 2008) (internal quotations omitted). Here,
19 Jiang testified that he did not practice Falun Gong in China
20 and that if he returned to China he would practice Falun
21 Gong only at home. The only evidence he points to is the
22 background material, and while that evidence indicates that
23 the Chinese government suppresses the practice of Falun
5
1 Gong, it does not sufficiently demonstrate how the
2 government would become aware of his participation. Thus,
3 “[i]n the absence of solid support for [Jiang]’s assertion
4 that he will be subjected to [persecution], his fear is
5 speculative at best,” Huang, 421 F.3d at 129, and we find no
6 reason to disturb the agency’s conclusion.
7 Because Jiang did not challenge in his brief to the BIA
8 the agency’s denial of his withholding of removal and CAT
9 claims, this Court does not have jurisdiction to address
10 such a challenge in the first instance. See 8 U.S.C.
11 § 1252(d)(1). We dismiss the petition for review to that
12 extent.
13 For the foregoing reasons, the petition for review is
14 DENIED, in part, and DISMISSED, in part. As we have
15 completed our review, the pending motion for a stay of
16 removal in this petition is DISMISSED as moot.
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
22
6