Filed: Feb. 24, 2011
Latest Update: Feb. 21, 2020
Summary: 10-509-ag Yang v. Holder BIA Mulligan, IJ A097 814 806 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: 10-509-ag Yang v. Holder BIA Mulligan, IJ A097 814 806 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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10-509-ag
Yang v. Holder
BIA
Mulligan, IJ
A097 814 806
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 24th day of February, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 DONG CAI YANG,
14 Petitioner,
15
16 v. 10-509-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Dong Cai Yang, pro se, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Susan K. Houser, Senior
28 Litigation Counsel; Jacob A.
29 Bashyrov, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, 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 Petitioner Dong Cai Yang, a native and citizen of
6 China, seeks review of a January 14, 2010, decision of the
7 BIA affirming the April 3, 2008, decision of Immigration
8 Judge (“IJ”) Thomas J. Mulligan denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Dong Cai Yang,
11 No. A097 814 806 (B.I.A. Jan. 14, 2010), aff’g No. A097 814
12 806 (Immig. Ct. N.Y. City Apr. 3, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as modified by the BIA decision. See Xue Hong
17 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
18 2005). The applicable standards of review are
19 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
20 v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
21 Because the BIA did not affirm the IJ’s adverse
22 credibility determination, we assume Yang’s credibility for
23 the purposes of review. See Diallo v. INS,
232 F.3d 279,
2
1 288 (2d Cir. 2000). Even assuming credibility, substantial
2 evidence supports the agency’s conclusion that Yang failed
3 to demonstrate his eligibility for asylum, withholding of
4 removal, or CAT relief based on his alleged illegal
5 departure from China.
6 Yang testified that he left China with a passport which
7 was inspected when he left the country, and that he did not
8 know whether he had used a valid exit visa. He now contends
9 that the agency erred in finding that his departure from
10 China was not illegal, because snakeheads bribed officials
11 to let him out. Given his admission that he used his
12 passport to leave the country, this argument does not compel
13 the conclusion that his departure was not illegal. See
14 Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where
15 the evidence would support either of competing inferences,
16 the fact that this Court might have drawn one inference does
17 not entitle it to overturn the trial court’s choice of the
18 other.”).
19 Moreover, the agency did not err in finding that he did
20 not meet his burden of establishing a well-founded fear of
21 future persecution or a likelihood of persecution or
22 torture. In support of his application, Yang presented
23 country conditions evidence which he argues established that
3
1 he would be subjected to persecution. However, the agency
2 considered this evidence and reasonably concluded that this
3 evidence indicated that most returnees would be, at most,
4 subjected to a brief detention. Because Yang did not submit
5 any particularized evidence showing that he would be
6 persecuted or tortured, the record does not compel the
7 conclusion that Yang met his burden of proof. See Huang v.
8 INS, 421 F.3d 125, 128 (2d Cir. 2005) (an applicant for
9 asylum must demonstrate that a “reasonable person in the
10 petitioner’s circumstances would fear persecution if
11 returned to his native country”); Mu Xiang Lin v. U.S. Dep't
12 of Justice,
432 F.3d 156, 157-60 (2d Cir. 2005) (holding
13 that a petitioner is not “entitled to CAT protection based
14 solely on the fact that she is part of the large class of
15 persons who have illegally departed China,” and that beyond
16 generalized country conditions reports stating that some
17 Chinese prisoners have been tortured, an applicant for CAT
18 relief must submit particularized evidence suggesting that
19 he is likely to be subject to torture in Chinese prisons).
20 Accordingly, the agency reasonably denied Yang’s application
21 for asylum, withholding of removal, and CAT relief. Id.;
22 see also Ramsameachire v. Ashcroft,
357 F.3d 169, 178, 185
23 (2d Cir. 2004) (explaining that to establish eligibility for
4
1 asylum an applicant must demonstrate a well-founded fear of
2 future persecution and to establish eligibility for
3 withholding of removal or CAT relief the applicant must meet
4 a higher standard of proof and demonstrate a likelihood of
5 persecution or torture).
6 Finally, we decline to consider Yang’s unexhausted
7 argument that the IJ erred in failing to address his claim
8 for asylum based on China’s family planning policy. See Lin
9 Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d
10 Cir. 2007).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
5
