09-5104-ag
Jiang v. Holder
BIA
Nelson, IJ
A094 927 955
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 29 th day of December, two thousand ten.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges
11 _____________________________________
12
13 SAI MING JIANG, also known as HUA
14 JIANG,
15 Petitioner,
16
17 v. 09-5104-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Gerald Karikari, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; John C. Cunningham, Senior
28 Litigation Counsel; Claire L.
29 Workman, 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 Sai Ming Jiang, a native and citizen of the People’s
10 Republic of China, seeks review of a November 13, 2009,
11 order of the BIA, affirming the January 29, 2008, decision
12 of Immigration Judge (“IJ”) Barbara A. Nelson, which denied
13 his application for asylum, withholding of removal and
14 relief under the Convention Against Torture (“CAT”). In re
15 Sai Ming Jiang, No. A094 927 955 (B.I.A. Nov. 13, 2009),
16 aff’g No. A094 927 955 (Immig. Ct. N.Y. City Jan. 29, 2008).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we review the
20 IJ’s decision as modified by the BIA decision, i.e., minus
21 the arguments for denying relief that were rejected by the
22 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
23 520, 522 (2d Cir. 2005). The applicable standards of review
24 are well-established. See Salimatou Bah v. Mukasey, 529
2
1 F.3d 99, 110 (2d Cir. 2008); Manzur v. U.S. Dep’t of
2 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
3 Although the IJ concluded that Jiang’s testimony was
4 not credible, the BIA denied his claim assuming his
5 testimony was credible. We, therefore, likewise assume the
6 credibility of Jiang’s testimony. See Yan Chen v. Gonzales,
7 417 F.3d 268, 271-72 (2d Cir. 2005). Accordingly, we do not
8 address Jiang’s challenges to the IJ’s adverse credibility
9 finding. See id.
10 In finding that Jiang failed to demonstrate his
11 eligibility for relief, the BIA first concluded that he had
12 not suffered past persecution. Jiang testified that he was
13 sought by the Chinese police in connection with his
14 employment at a bookstore that, unbeknownst to him,
15 contained Falun Gong books. Jiang admitted, however, that
16 he was not actually arrested. Thus, the BIA reasonably
17 found that the mere fact that the police sought Jiang for
18 arrest or questioning did not rise to the level of
19 persecution. See Ivanishvili v. U.S. Dep’t of Justice, 433
20 F.3d 332, 341 (2d Cir. 2006).
21 Because the agency reasonably determined that he had
22 not suffered past persecution, Jiang’s contention that he
3
1 was entitled to a presumption of a well-founded fear of
2 persecution is without merit. See Beskovic v. Gonzales, 467
3 F.3d 223, 227 (2d Cir. 2006); 8 C.F.R. §§ 208.13(b)(1),
4 1208.16(b)(1). Further, the BIA reasonably determined that
5 Jiang failed to meet his burden of demonstrating that his
6 fear of persecution, based on his employment at the
7 bookstore in China or his practice of Falun Gong in the
8 United States, was objectively reasonable. See
9 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
10 In finding that Jiang failed to meet his burden, the
11 BIA noted that he testified that he did not know whether the
12 police had issued a warrant for his arrest. The BIA further
13 noted that the only corroboration Jiang provided for his
14 testimony consisted of two letters, one from his father, and
15 a second from his relative, Yun Zhu Weng. The BIA
16 reasonably found that these letters were insufficient to
17 sustain Jiang’s burden of demonstrating that his fear of
18 persecution was objectively reasonable, noting that: (1) Yun
19 Zhu Weng’s letter did not mention that the police maintained
20 an interest in Jiang’s arrest; and (2) while his father’s
21 letter stated that the police “kept on questioning about
22 [Jiang’s] whereabouts” the letter lacked detail as to when
4
1 and how often this questioning occurred. See Kyaw Zwar Tun
2 v. INS, 445 F.3d 554, 568 (2d Cir. 2006). The BIA also
3 reasonably relied on the fact that Jiang was able to exit
4 China using his own passport, thereby undermining the
5 objective reasonableness of his fear of persecution. See
6 Ying Li v. Bureau of Citizenship and Immigration Servs., 529
7 F.3d 79, 83 (2d Cir. 2008).
8 Finally, the BIA reasonably found that Jiang failed to
9 demonstrate a well-founded fear of persecution on account of
10 his practice of Falun Gong in the United States because he
11 failed to provide any evidence that he faced a risk of
12 future persecution based on his practice of Falun Gong, or
13 that there was a “pattern or practice” of persecution of
14 similarly situated individuals in China. Jiang’s generic
15 assertion that “the most recent Religious Report and Human
16 Rights Report” support the objective reasonableness of his
17 fear of persecution is of no moment because these reports
18 are not included in the administrative record. See 8 U.S.C.
19 § 1252(b)(4)(A); Xiao Xing Ni v. Gonzales, 494 F.3d 260,
20 269-70 (2d Cir. 2007).
21 In sum, the BIA reasonably found that, even assuming
22 the credibility of Jiang’s testimony, he failed to establish
5
1 either that he suffered past persecution, or that his fear
2 of persecution was objectively well-founded. See
3 Ivanishvili, 433 F.3d at 341; Ramsameachire, 357 F.3d at
4 178. Accordingly, the agency did not err in denying Jiang’s
5 application for asylum. Nor did it err in denying his
6 applications for withholding of removal and CAT relief,
7 which were based on the same factual predicate but required
8 Jiang to satisfy a more stringent showing. Manzur, 494 F.3d
9 at 288.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
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