09-4823-ag
Ni v. Holder
BIA
Chew, IJ
A095 144 293
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 20 th day of July, two thousand ten.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 WEN QUN NI,
14 Petitioner,
15
16 v. 09-4823-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Jed S. Wasserman, Kuzmin &
24 Associates, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Civil Division; Jennifer L.
28 Lightbody, Senior Litigation
29 Counsel; Edward E. Wiggers, Trial
30 Attorney, Office of Immigration
31 Litigation, Civil Division, United
32 States Department of Justice,
33 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 Wen Qun Ni, a native and citizen of the
6 People’s Republic of China, seeks review of an October 21,
7 2009, order of the BIA affirming the January 17, 2008,
8 decision of Immigration Judge (“IJ”) George T. Chew denying
9 Ni’s application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Wen Qun Ni, No. A095 144 293 (B.I.A. Oct. 21, 2009), aff’g
12 No. A 95 144 293 (Immig. Ct. N.Y. City Jan. 17, 2008). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as supplemented by the BIA’s decision. See
17 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
18 Ni argues that he suffered past persecution because he
19 incurred a fine as a result of his violation of the family
20 planning policy. He claims “[i]t was difficult for him to
21 pay off the fine,” and he says he had to “borrow[] money
22 from ‘everywhere.’” However, he produced no evidence of his
2
1 income in China, his net worth at the time of the fines, or
2 any other facts that would make it possible to evaluate his
3 personal financial circumstances in relation to the fines
4 imposed by the government. “Absent this sort of proof, we
5 cannot assess whether or not the fines constituted a
6 substantial disadvantage to him.” Guan Shan Liao v. United
7 States Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002).
8 Moreover, to the extent that Ni argues that his expulsion
9 from vocational school constituted economic persecution, as
10 the BIA noted, Ni did not demonstrate that “he has no
11 alternative means of obtaining an education or gainful
12 employment.” Because Ni bears the burden of proof and he
13 does not point to anything in the record contradicting these
14 findings, we find no error in the agency’s conclusion that
15 Ni failed to establish past persecution. See 8 C.F.R.
16 § 1208.13(a).
17 Because the agency’s decision was supported by
18 substantial evidence, inasmuch as Ni’s claim for withholding
19 of removal and CAT relief share the same factual predicate
20 as his claim for asylum, the agency’s finding is fatal to
21 those claims as well. See Paul v. Gonzales, 444 F.3d 148,
22 156 (2d Cir. 2006). To the extent Ni argues he is eligible
3
1 for CAT relief based on his illegal departure from China, we
2 decline to address the argument as it was not exhausted
3 before the agency. See Lin Zhong v. U.S. Dep’t of Justice,
4 480 F.3d 104, 119-20 (2d Cir. 2007).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
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