10-1805-ag
    Jiang v. Holder
                                                                                  BIA
                                                                             Videla, IJ
                                                                          A077 322 357
                       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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 15th day of March, two thousand eleven.

    PRESENT:
             ROGER J. MINER,
             ROBERT A. KATZMANN,
             PETER W. HALL,
                  Circuit Judges.
    ______________________________________

    SHU X. JIANG,
             Petitioner,

                      v.                                   10-1805-ag
                                                           NAC
    ERIC H. HOLDER, JR.,
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:               Gary J. Yerman, New York, N.Y.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General, Civil Division; Aviva L.
                                  Poczter, Senior Litigation Counsel;
                                  Christopher P. McGreal, Trial
                                  Attorney, Office of Immigration
                                  Litigation, United States Department
                                  of Justice, Washington, D.C.
       UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DENIED.

       Shu Xing Jiang, a native and citizen of the People’s

Republic of China, seeks review of an April 9, 2010 order of

the BIA affirming the June 9, 2008, decision of Immigration

Judge (“IJ”) Gabriel C. Videla, denying his applications for

asylum and withholding of removal.    In re Shu Xing Jiang,

No. A077 322 357 (B.I.A. Apr. 9, 2010), aff’g No. A077 322

357 (Immigr. Ct. N.Y. City June 9, 2008).    We assume the

parties’ familiarity with the underlying facts and

procedural history of this case.

       Under the circumstances of this case, we review the

IJ’s decision as modified by the BIA decision, i.e., minus

the arguments for denying relief that were rejected by the

BIA.    See Xue Hong Yang v. U.S. Dep’t of Justice, 

, 522 (2d Cir. 2005).    The applicable standards of review

are well-established.    See 8 U.S.C. § 1252(b)(4)(B)(“[T]he

administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary.”); Yanqin Weng v. Holder, 

, 513 (2d


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Cir. 2009)(upholding the IJ’s factual findings if they are

supported by “reasonable, substantial and probative evidence

in the record” and reviewing “de novo questions of law and

the [BIA’s] application of law to undisputed fact”(internal

citations omitted; alteration in original)).

    Contrary to Jiang’s assertions, the IJ did not fail to

develop the record or violate Jiang’s right to due process.

Jiang bore the burden to establish his eligibility for

asylum, and because egregious circumstances are not present

here, he is bound by his decision to follow his counsel’s

tactical advice to rest on the previous record relating to

economic persecution and to refuse to answer additional

questions at his June 2008 merits hearing.     See Changzu

Jiang v. Mukasey, 

, 271 (2d Cir. 2008)(per

curiam) (“It is not unusual or egregious for counsel to make

tactical decisions that ultimately fizzle and redound to the

client’s detriment.” (internal quotation marks omitted)); 8

C.F.R. § 1208.13(a).

    Given the evidence in the record and assuming Jiang’s

testimony to be credible, the agency reasonably determined

that Jiang did not establish past economic persecution based

on the loss of his teaching job and employer-provided


                             3
housing and his payment of a 200 RMB fine, because he did

not present any evidence of his financial situation and

testified that he was able to find other work.     See Guan

Shan Liao v. U.S. Dep’t of Justice, 

, 70 (2d Cir.

2002) (holding that the agency reasonably concluded that the

petitioner failed to demonstrate economic persecution

because he did not produce evidence of his “income in China,

his net worth at the time of the fines, or any other facts

that would make it possible . . . to evaluate his personal

financial circumstances in relation to the fines” imposed by

the government); see also In re T-Z-, 24 I. & N. Dec. 163,

171 (B.I.A. May 9, 2007) (recognizing economic persecution

as “the deliberate imposition of severe economic

disadvantage or the deprivation of liberty, food, housing,

employment or other essentials of life” (emphasis and

internal quotation marks omitted)).    Other than asserting

that this economic difficulty would persist if he returned

to China, Jiang does not challenge the agency’s

determination that he failed to establish a well-founded

fear of persecution.    Because Jiang did not establish that

he suffered past economic persecution, he is not entitled to

a presumption of future persecution on that basis.       See 8

C.F.R § 1208.13(b).    Moreover, as Jiang is unable to

                               4
establish his eligibility for asylum, his application for

withholding of removal, which is based on the same factual

predicate, fails as well.     See Paul v. Gonzales, 

, 155-56 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.    As we have completed our review, then pending

motion for a stay of removal in this petition is DISMISSED

as moot.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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