09-0913-ag
Zhou v. Holder
BIA
Abrams, IJ
A098 990 622
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 5 th day of May, two thousand ten.
PRESENT:
REENA RAGGI,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_______________________________________
JIANG DE ZHOU,
Petitioner,
v. 09-0913-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Yimin Chen, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; James H.
Hunolt, Senior Litigation Counsel;
Margaret A. O’Donnell, 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.
Jiang De Zhou, a native and citizen of the People’s
Republic of China, seeks review of a February 9, 2009, order
of the BIA affirming the November 30, 2006, decision of
Immigration Judge (“IJ”) Steven R. Abrams, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Jiang
De Zhou, No. A098 990 622 (B.I.A. Feb. 9, 2009), aff’g No.
A098 990 622 (Immig. Ct. N.Y. City Nov. 30, 2006). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 289 (2d
Cir. 2007); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d
Cir. 2008).
In order to qualify for asylum, an applicant must show
past persecution or a well-founded fear of future
persecution on account of his race, religion, nationality,
membership in a particular social group, or political
opinion. See 8 U.S.C. § 1101(a)(42). Withholding of
removal requires an applicant to show that, if removed, it
is more likely than not that his life or freedom would be
threatened on account of one of those protected grounds. 8
C.F.R. § 1208.16(b)(2). “The applicant bears the burden of
demonstrating eligibility for asylum and withholding of
removal.” Delgado v. Mukasey, 508 F.3d 702, 706 (2d Cir.
2007).
Zhou asserts in his counseled brief that he is entitled
to asylum and withholding of removal because he is part of
the “social group” of “repeated illegal flee,” meaning those
who have illegally entered another country and are now being
repatriated to China. Contrary to Zhou’s argument, the
agency’s determination that such a large group of people,
effectively comprising every Chinese citizen who has
violated China’s immigration law, lacks sufficient
particularity to constitute a particular social group under
the INA. See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d
2
Cir. 2007). We find no error in the agency’s determination
that, even if that social group was sufficiently cognizable,
Zhou could not establish that Chinese officials would
persecute him on account of his membership in that group
rather than prosecute him for violating a generally
applicable law. See 8 U.S.C. § 1158(b)(1)(B); see also Qun
Yang v. McElroy, 277 F.3d 158, 163 n.5 (2d Cir. 2002);
Matter of Sibrun, 18 I & N Dec. 354, 359 (BIA 1983). The
agency reasonably denied Zhou’s applications for asylum and
withholding of removal. See 8 U.S.C. §§ 1101(a)(42),
1231(b)(3).
Unlike both asylum and withholding of removal under the
INA, CAT relief does not require a nexus to one of the
protected grounds; it does not matter why the applicant will
be tortured, only that the torture is more likely than not
to occur. See Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d
Cir. 2004); 8 C.F.R. §§ 1208.16(c), 1208.17. Nonetheless,
we find no error in the agency’s denial of Zhou’s
application for CAT relief because Zhou presented no
particularized evidence demonstrating that someone in his
circumstances would more likely than not be tortured in
China. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44
(2d Cir. 2003). Rather, Zhou offered evidence that some
individuals who illegally depart China are imprisoned and
that human rights violations, including torture, occur in
Chinese prisons. We have explicitly held that such
evidence, without more, is insufficient to support a claim
for CAT relief. See Mu Xiang Lin v. U.S. Dep’t of Justice,
432 F.3d 156, 159-60 (2d Cir. 2005). The same result
obtains here.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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