Filed: Feb. 08, 2011
Latest Update: Feb. 21, 2020
Summary: 10-410-ag Cheng v. Holder BIA Elstein, IJ A098 769 783 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
Summary: 10-410-ag Cheng v. Holder BIA Elstein, IJ A098 769 783 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 N..
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10-410-ag
Cheng v. Holder
BIA
Elstein, IJ
A098 769 783
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 8th day of February, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 CHEN CHENG,
14 Petitioner,
15
16 v. 10-410-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Jan Potemkin, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney General;
26 Ernesto H. Molina, Jr., Assistant
27 Director; Gladys M. Steffens Guzmán,
28 Trial Attorney, Civil Division, Office of
29 Immigration Litigation, United States
1 Department of Justice, Washington, D.C.
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Petitioner Chen Cheng, a native and citizen of the
7 People’s Republic of China, seeks review of a January 8,
8 2010, decision of the BIA affirming the April 3, 2008,
9 decision of Immigration Judge (“IJ”) Annette S. Elstein
10 denying Cheng’s application for asylum, withholding of
11 removal, and relief under the Convention Against Torture
12 (“CAT”). In re Chen Cheng, No. A098 769 783 (B.I.A. Jan. 8,
13 2010), aff’g No. A098 769 783 (Immig. Ct. N.Y. City Apr. 3,
14 2008). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 Under the circumstances of this case, we review the
17 IJ’s decision as supplemented by the BIA decision. See Yan
18 Chen 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); Jian Hui Shao v. Mukasey,
546 F.3d
21 138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529
22 F.3d 99, 110 (2d Cir. 2008).
23
2
1 I. Asylum and Withholding of Removal
2 A. Past Persecution
3 Contrary to the government’s assertion that Cheng
4 failed to exhaust any challenge to the IJ’s determination
5 that the fine imposed on him constituted persecution, Cheng
6 argued before the BIA that the fine was an unreasonable
7 penalty imposed to punish him for violating the family
8 planning policy. Because the issue was raised below, it has
9 been sufficiently exhausted. However, although Cheng
10 testified that the fine constituted “about seven months of
11 [his] income,” he provided no evidence of his net worth at
12 the time of the fines, or any other facts that would make it
13 possible to evaluate his personal financial circumstances in
14 relation to the fine. See Guan Shan Liao v. United States
15 Dep’t of Justice, 293 F.3d 61, 68, 70 (2d Cir. 2002)(finding
16 that although economic deprivation may constitute
17 persecution, “an asylum applicant must offer some proof that
18 he suffered a deliberate imposition of substantial economic
19 disadvantage.”) (internal quotation marks and citation
20 omitted). Absent such proof, we cannot assess whether or
21 not the fine constituted a “substantial economic
22 disadvantage” to him as required for a finding of past
3
1 persecution. See id.; see also 8 U.S.C. § 1229a(c)(4)(B)
2 (noting that the applicant bears the burden of proof to
3 establish the elements of his claim).
4 B. Well-Founded Fear of Future Persecution
5 1. “Other Resistance Claim”
6 As the agency noted, despite Cheng’s bald assertion
7 that, upon returning to China, Chinese authorities will
8 impose additional punishments on him, no evidence indicated
9 that Chinese authorities had any remaining interest in Cheng
10 based on his resistance to the family planning policy. See
11 Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
12 (noting that a fear is not objectively reasonable if it
13 lacks “solid support” in the record and is merely
14 “speculative at best”). Given the lack of evidence, the
15 agency reasonably found that Cheng failed to meet his burden
16 of proof.
17 2. Illegal Departure Claim
18 Despite Cheng’s assertion that he established a well-
19 founded fear of persecution based on his illegal departure
20 from China, the possibility that an alien will be prosecuted
21 under a generally applicable statute does not, by itself,
22 demonstrate that the alien has a well-founded fear of
4
1 persecution on account of a protected ground. See Qun Yang
2 v. McElroy, 277 F.3d 158, 163 n.5 (2d Cir. 2002). Cheng
3 points to no evidence, and relies only on the non-binding
4 decisions of other circuits. See, e.g., United States v.
5 Mang Sun Wong,
884 F.2d 1537, 1542 (2d Cir. 1989)
6 (indicating that we are not bound to follow decisions of
7 another circuit). Accordingly, the BIA reasonably
8 determined that Cheng failed to meet his burden of proof
9 that he had a well-founded fear of persecution based on his
10 illegal departure from China. See Qun
Yang, 277 F.3d at 163
11 n.5.
12 II. CAT Claim
13 Contrary to the government’s assertion that Cheng
14 waives any challenge to the agency’s denial of CAT relief,
15 Cheng asserts that the “evidence submitted demonstrate[d]
16 that China persecutes and tortures those who flee China
17 without prior authorization.” However, a petitioner is not
18 “entitled to CAT protection based solely on the fact that
19 she is part of the large class of persons who have illegally
20 departed China.” Mu Xiang Lin v. U.S. Dep’t of Justice, 432
21 F.3d 156, 160 (2d Cir. 2005)(emphasis in original); see also
22 Mu-Xing Wang v. Ashcroft,
320 F.3d 130, 143-44 (2d Cir.
5
1 2003). Because Cheng produced only generalized evidence
2 concerning the treatment of prisoners in China without
3 submitting particularized evidence indicating that he is
4 likely to be tortured or that illegal emigrants are tortured
5 upon their return to China, he failed to demonstrate his
6 eligibility for CAT relief. See Mu Xiang Lin, 432 F.3d at
7 160.
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
20
6
