Filed: Apr. 27, 2011
Latest Update: Feb. 22, 2020
Summary: 10-319-ag He v. Holder BIA Videla, IJ A200 037 310 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 NOTA
Summary: 10-319-ag He v. Holder BIA Videla, IJ A200 037 310 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..
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10-319-ag
He v. Holder
BIA
Videla, IJ
A200 037 310
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 27th day of April, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROBERT A. KATZMANN,
10 DENNY CHIN,
11 Circuit Judges.
12 _______________________________________
13
14 JIN GING HE,
15 Petitioner,
16
17 v. 10-319-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Ramesh K. Shrestha, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Anthony P. Nicastro, Senior
29 Litigation Counsel; D. Nicholas
1 Harling, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Jin Ging He, a native and citizen of China, seeks
11 review of a December 30, 2009, order of the BIA affirming
12 the March 26, 2008, decision of Immigration Judge (“IJ”)
13 Gabriel C. Videla, which denied his application for asylum,
14 withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Jin Ging He, No. A200 037
16 310 (B.I.A. Dec. 30, 2009), aff’g No. A200 037 310 (Immig.
17 Ct. N.Y. City Mar. 26, 2008). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 in this case.
20 Under the circumstances of this case, we review the
21 decision of the IJ as supplemented by the BIA. Yan Chen v.
22 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
23 standards of review are well-established. See Salimatou Bah
24 v. Mukasey,
529 F.3d 99, 110-11 (2d Cir. 2008); Shu Wen Sun
25 v. BIA,
510 F.3d 377, 379 (2d Cir. 2007). In Shi Liang Lin
2
1 v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007), we
2 determined that, under 8 U.S.C. § 1101(a)(42), an individual
3 is not per se eligible for asylum based on the forced
4 abortion or sterilization of a spouse or partner because
5 “applicants can become candidates for asylum relief only
6 based on persecution that they themselves have suffered or
7 must suffer.”
Id. at 308 In the absence of per se
8 persecution based on his wife’s abortions, He was required
9 to show “other resistance to a coercive population control
10 program,” and that he was persecuted or has a well founded
11 fear of persecution as a result.
Id. at 308.
12 Without the making of a credibility determination, the
13 agency reasonably concluded that He nevertheless failed to
14 demonstrate persecution. He’s claim is based on his wife’s
15 forced abortions, the fine to which he was subject, and his
16 parents’ detention. But, the BIA has defined persecution as
17 a “threat to the life or freedom of, or the infliction of
18 suffering or harm upon, those who differ in a way regarded
19 as offensive.” Matter of Acosta, 19 I. & N. Dec. 211, 222
20 (BIA 1985), overruled, in part, on other grounds, INS v.
21 Cardoza-Fonseca,
480 U.S. 421 (1987). The harm must be
22 sufficiently severe, rising above “mere harassment.”
3
1 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
2 Cir. 2006). Economic harm may constitute persecution;
3 however, “an applicant for asylum must demonstrate a severe
4 economic disadvantage.” Matter of T-Z-, 24 I. & N. Dec.
5 163, 173 (BIA 2007).
6 Here, the agency addressed the harassment described by
7 He, and reasonably found that it was insufficiently severe
8 to constitute persecution. See
Ivanishvili, 433 F.3d at
9 341. He presented no evidence to suggest that the one fine
10 he was forced to pay caused him severe economic
11 disadvantage, nor did he present any evidence indicating
12 that he suffered harm from his parents’ detention, or that
13 his parents were abused or harmed while detained. While He
14 may well have been harmed by his wife’s abortions, the only
15 resistance to a coercive population control program that he
16 discussed was yelling at officials when they took his wife
17 for her second abortion. When asked at his hearing if he
18 had any direct problem with family planning officials, He
19 answered, “[p]ersonally, no.” Accordingly, the agency did
20 not err in concluding that He did not suffer past
21 persecution. See
id.
22
4
1 Because the agency reasonably concluded that He did not
2 suffer past persecution, he is not entitled to a presumption
3 of future persecution. See 8 C.F.R. § 208.13(b).
4 Furthermore, He makes no argument concerning a fear of
5 future persecution independent of the incidents that
6 occurred in the past, other than a generalized, conclusory
7 statement. Consequently, the agency reasonably concluded
8 that He did not meet his burden of establishing a well-
9 founded fear of future persecution. See Jian Xing Huang v.
10 INS,
421 F.3d 125, 129 (2d Cir. 2005) (concluding that a
11 fear is not objectively reasonable if it lacks “solid
12 support” in the record and is merely “speculative at best”).
13 Because He did not establish a well-founded fear of
14 persecution, he necessarily cannot sustain the heavier
15 burden of showing it is more likely than not he will be
16 persecuted if he returns to China. The agency therefore did
17 not err in denying his application for withholding of
18 removal. See 8 C.F.R. § 1208.16(b). Finally, He’s
19 allegation that it is reasonable to expect that he will be
20 tortured if he returns to China is not supported by any
21 argument or evidence, and it is insufficient to establish
22 eligibility for protection under CAT. See 8 C.F.R.
23 §§ 1208.16(c)(2), 1208.18(a); Mu Xiang Lin v. U.S. Dep’t of
24 Justice,
432 F.3d 156, 160 (2d Cir. 2005).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2) and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
6
