Filed: Apr. 05, 2012
Latest Update: Feb. 22, 2020
Summary: 10-2199-ag Shi v. Holder BIA Hom, IJ A097 703 688 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 NOTAT
Summary: 10-2199-ag Shi v. Holder BIA Hom, IJ A097 703 688 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 NOTATI..
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10-2199-ag
Shi v. Holder
BIA
Hom, IJ
A097 703 688
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 ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 DAOMIN MYN SHI,
14 Petitioner,
15
16 v. 10-2199-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Charles Christophe, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Russell J. E. Verby, Senior
28 Litigation Counsel; Dalin R.
29 Holyoak, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Daomin Myn Shi, a native and citizen of China, seeks
10 review of a May 21, 2010, decision of the BIA affirming the
11 June 12, 2008, decision of Immigration Judge (“IJ”) Sandy
12 Hom, which denied his application for asylum, withholding of
13 removal, and relief under the Convention Against Torture
14 (“CAT”). In re Daomin Myn Shi, No. A097 703 688 (B.I.A. May
15 21, 2010), aff’g No. A097 703 688 (Immig. Ct. N.Y. City June
16 12, 2008). We assume the parties’ familiarity with the
17 underlying facts and procedural history.
18 Under the circumstances of this case, we review the
19 IJ’s decision as modified by the BIA decision, and, because
20 the BIA assumed Shi’s credibility, we do the same. See Xue
21 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
22 Cir. 2005). The applicable standards of review are well-
23 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
24 Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
2
1 Substantial evidence supports the agency’s finding that
2 Shi did not establish a likelihood of persecution or torture
3 if returned to China. See 8 C.F.R. § 1208.16(b)(1). First,
4 the IJ noted that the country condition reports that Shi
5 submitted suggested that while underground churches were
6 interfered with by the government, treatment varied greatly
7 in different areas, and in some localities the churches were
8 tolerated. Second, the agency determined that these same
9 reports indicated that the Chinese government’s harassment
10 of underground church members was, for the most part,
11 limited to leaders of those churches. As Shi admitted that
12 he was not, and had never been, a leader of any church,
13 either in the United States or in China, the agency
14 reasonably found that Shi’s “mere association” with an
15 underground church was not enough to establish that he would
16 be persecuted in China. See Tu Lin v. Gonzales, 446 F.3d
17 395, 400 (2d Cir. 2006). Finally, the BIA found that even
18 if Shi testified credibly during his merits hearing, the
19 events to which he testified, where he was never arrested,
20 detained or physically mistreated, did not establish a
21 likelihood that he would be persecuted if he returned to
22 China. See Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d
23 332, 341 (2d Cir. 2006). Accordingly, the agency did not
3
1 err in finding that Shi failed to establish a clear
2 probability of persecution based on his membership in an
3 underground Christian church. See Jian Xing Huang v. INS,
4 421 F.3d 125, 129 (2d Cir. 2005).
5 Shi accurately notes that the BIA erred in finding that
6 he “admitted that his parents are practicing Christians who
7 have remained unharmed in China for many years.” The BIA
8 clearly erred in this finding, as there is no evidence in
9 the record to support it. On the other hand, as the IJ
10 found, Shi made no showing that his family had experienced
11 any difficulty in the years since he had remained in China.
12 [JA 20] We are “not required to remand where there is no
13 realistic possibility that, absent the errors, the IJ or BIA
14 would have reached a different conclusion.” Alam v.
15 Gonzales,
438 F.3d 184, 187 (2d Cir. 2006) (internal
16 quotation marks omitted).
17 Although Shi states that “he will likely suffer torture
18 if forced to return to China,” he presents no argument or
19 evidence supporting this claim, other than a general
20 statement that it is “because of his religious beliefs and
21 practice.” As the BIA concluded, Shi “failed to demonstrate
22 with sufficient objective evidence that he more likely than
4
1 not would be subject to abuse amounting to torture” if he
2 were to return to China. See 8 C.F.R. §§ 1208.16(c)(2),
3 1208.18(a); Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d
4 156, 160 (2d Cir. 2005).
5 For the foregoing reasons, the petition for review is
6 DENIED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
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12
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