Filed: Jul. 21, 2010
Latest Update: Feb. 21, 2020
Summary: 09-3008-ag Xia v. Holder BIA Balasquide, IJ A098 492 278 A098 492 279 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 DATA
Summary: 09-3008-ag Xia v. Holder BIA Balasquide, IJ A098 492 278 A098 492 279 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 DATAB..
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09-3008-ag
Xia v. Holder
BIA
Balasquide, IJ
A098 492 278
A098 492 279
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 21 st day of July, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 XIAOYI XIA, CHANG YANG,
14 Petitioners,
15
16 v. 09-3008-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: H. Raymond Fasano, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Greg D. Mack, Senior
28 Litigation Counsel; Kristina R.
29 Sracic, Trial Attorney, Office of
30 Immigration Litigation, Washington
31 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 Petitioners Xiaoyi Xia and Chang Yang, natives and
6 citizens of the People’s Republic of China, seek review of
7 the June 15, 2009, order of the BIA affirming the October 3,
8 2007, decision of Immigration Judge (“IJ”) Javier E.
9 Balasquide pretermitting their applications for asylum and
10 denying their applications for withholding of removal and
11 relief under the Convention Against Torture (“CAT”). In re
12 Xiaoyi Xia and Chang Yang, Nos. A098 492 278, A 098 492 279
13 (B.I.A. June 15, 2009), aff’g Nos. A098 492 278, A 098 294
14 279 (Immig. Ct. N.Y. City Oct. 3, 2007). We assume the
15 parties’ familiarity with the underlying facts and
16 procedural history in this case.
17 Under the circumstances of this case, we review both
18 the IJ’s and BIA’s decisions. See Yan Chen v. Gonzales, 417
19 F.3d 268, 271 (2d Cir. 2005). The applicable standards of
20 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
21 Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
22 Because petitioners do not challenge the agency’s
2
1 pretermission of their asylum applications, we consider only
2 their eligibility for withholding of removal and CAT relief.
3 With respect to petitioners’ claim under the family
4 planning policy, we have previously reviewed the agency’s
5 consideration of evidence similar to that which they
6 submitted and have found no error in its conclusion that
7 such evidence is insufficient to establish an alien’s prima
8 facie eligibility for relief. See Jian Hui Shao v. Mukasey,
9 546 F.3d 138, 164-72 (2d Cir. 2008); see also Wei Guang Wang
10 v. BIA,
437 F.3d 270, 275 (2d Cir. 2006). We have also held
11 that petitioners cannot establish a well-founded fear of
12 persecution under the family planning policy based on the
13 birth of only one child. See Jian Xing Huang v. INS, 421
14 F.3d 125, 129 (2d Cir. 2005) (a fear is not objectively
15 reasonable if it lacks “solid support” in the record and is
16 merely “speculative at best”).
17 With respect to petitioners’ illegal departure claim,
18 the BIA did not err in finding that they failed to establish
19 that any punishment imposed on them for fleeing from China
20 would rise to the level of persecution. See Saleh v. U.S.
21 Dep't of Justice,
962 F.2d 234, 239 (2d Cir. 1992) (holding
22 that “punishment for violation of a generally applicable
3
1 criminal law is not persecution”). The BIA reasonably
2 rejected petitioners’ claim that they would be persecuted on
3 account of their membership in a particular social group
4 comprised of “repatriated citizens who had illegally entered
5 the U.S.,” or “Chinese citizens who have brought shame to
6 the People’s Republic of China by violating another
7 [country’s] border laws,” holding that any punishment would
8 be imposed due to their illegal departure rather than their
9 membership in those purported groups. See 8 U.S.C.
10 § 1158(b)(1)(B) (stating that an asylum applicant’s status
11 as a member of a particular social group-and not some other
12 factor-must be a central reason why that individual is
13 targeted for persecution.) The BIA also did not err in
14 finding that petitioners failed to submit any particularized
15 evidence indicating that they would be singled out for
16 torture based on their illegal departure. See Mu Xiang Lin
17 v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.
18 2005); Mu-Xing Wang v. Ashcroft,
320 F.3d 130, 143-44 (2d
19 Cir. 2003). Contrary to petitioners’ assertion, the BIA
20 properly held that, absent some evidence of a specific
21 intent to inflict torture, a likelihood of imprisonment,
22 standing alone, was insufficient to establish their
4
1 eligibility for CAT relief. See Pierre v. Gonzales, 502
2 F.3d 109, 121 (2d Cir. 2007)
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
5
