Chen Cheng v. Holder

10-410-ag Cheng v. Holder BIA Elstein, IJ A098 769 783 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 8th day of February, two thousand eleven. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 GERARD E. LYNCH, 9 DENNY CHIN, 10 Circuit Judges. 11 _______________________________________ 12 13 CHEN CHENG, 14 Petitioner, 15 16 v. 10-410-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 ______________________________________ 22 23 FOR PETITIONER: Jan Potemkin, New York, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney General; 26 Ernesto H. Molina, Jr., Assistant 27 Director; Gladys M. Steffens Guzmán, 28 Trial Attorney, Civil Division, Office of 29 Immigration Litigation, United States 1 Department of Justice, Washington, D.C. 2 UPON DUE CONSIDERATION of this petition for review of a 3 Board of Immigration Appeals (“BIA”) decision, it is hereby 4 ORDERED, ADJUDGED, AND DECREED that the petition for review 5 is DENIED. 6 Petitioner Chen Cheng, a native and citizen of the 7 People’s Republic of China, seeks review of a January 8, 8 2010, decision of the BIA affirming the April 3, 2008, 9 decision of Immigration Judge (“IJ”) Annette S. Elstein 10 denying Cheng’s application for asylum, withholding of 11 removal, and relief under the Convention Against Torture 12 (“CAT”). In re Chen Cheng, No. A098 769 783 (B.I.A. Jan. 8, 13 2010), aff’g No. A098 769 783 (Immig. Ct. N.Y. City Apr. 3, 14 2008). We assume the parties’ familiarity with the 15 underlying facts and procedural history in this case. 16 Under the circumstances of this case, we review the 17 IJ’s decision as supplemented by the BIA decision. See Yan 18 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 19 applicable standards of review are well established. See 20 8 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546 F.3d 21 138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 22 F.3d 99, 110 (2d Cir. 2008). 23 2 1 I. Asylum and Withholding of Removal 2 A. Past Persecution 3 Contrary to the government’s assertion that Cheng 4 failed to exhaust any challenge to the IJ’s determination 5 that the fine imposed on him constituted persecution, Cheng 6 argued before the BIA that the fine was an unreasonable 7 penalty imposed to punish him for violating the family 8 planning policy. Because the issue was raised below, it has 9 been sufficiently exhausted. However, although Cheng 10 testified that the fine constituted “about seven months of 11 [his] income,” he provided no evidence of his net worth at 12 the time of the fines, or any other facts that would make it 13 possible to evaluate his personal financial circumstances in 14 relation to the fine. See Guan Shan Liao v. United States 15 Dep’t of Justice, 293 F.3d 61, 68, 70 (2d Cir. 2002)(finding 16 that although economic deprivation may constitute 17 persecution, “an asylum applicant must offer some proof that 18 he suffered a deliberate imposition of substantial economic 19 disadvantage.”) (internal quotation marks and citation 20 omitted). Absent such proof, we cannot assess whether or 21 not the fine constituted a “substantial economic 22 disadvantage” to him as required for a finding of past 3 1 persecution. See id.; see also 8 U.S.C. § 1229a(c)(4)(B) 2 (noting that the applicant bears the burden of proof to 3 establish the elements of his claim). 4 B. Well-Founded Fear of Future Persecution 5 1. “Other Resistance Claim” 6 As the agency noted, despite Cheng’s bald assertion 7 that, upon returning to China, Chinese authorities will 8 impose additional punishments on him, no evidence indicated 9 that Chinese authorities had any remaining interest in Cheng 10 based on his resistance to the family planning policy. See 11 Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) 12 (noting that a fear is not objectively reasonable if it 13 lacks “solid support” in the record and is merely 14 “speculative at best”). Given the lack of evidence, the 15 agency reasonably found that Cheng failed to meet his burden 16 of proof. 17 2. Illegal Departure Claim 18 Despite Cheng’s assertion that he established a well- 19 founded fear of persecution based on his illegal departure 20 from China, the possibility that an alien will be prosecuted 21 under a generally applicable statute does not, by itself, 22 demonstrate that the alien has a well-founded fear of 4 1 persecution on account of a protected ground. See Qun Yang 2 v. McElroy, 277 F.3d 158, 163 n.5 (2d Cir. 2002). Cheng 3 points to no evidence, and relies only on the non-binding 4 decisions of other circuits. See, e.g., United States v. 5 Mang Sun Wong, 884 F.2d 1537, 1542 (2d Cir. 1989) 6 (indicating that we are not bound to follow decisions of 7 another circuit). Accordingly, the BIA reasonably 8 determined that Cheng failed to meet his burden of proof 9 that he had a well-founded fear of persecution based on his 10 illegal departure from China. See Qun Yang, 277 F.3d at 163 11 n.5. 12 II. CAT Claim 13 Contrary to the government’s assertion that Cheng 14 waives any challenge to the agency’s denial of CAT relief, 15 Cheng asserts that the “evidence submitted demonstrate[d] 16 that China persecutes and tortures those who flee China 17 without prior authorization.” However, a petitioner is not 18 “entitled to CAT protection based solely on the fact that 19 she is part of the large class of persons who have illegally 20 departed China.” Mu Xiang Lin v. U.S. Dep’t of Justice, 432 21 F.3d 156, 160 (2d Cir. 2005)(emphasis in original); see also 22 Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir. 5 1 2003). Because Cheng produced only generalized evidence 2 concerning the treatment of prisoners in China without 3 submitting particularized evidence indicating that he is 4 likely to be tortured or that illegal emigrants are tortured 5 upon their return to China, he failed to demonstrate his 6 eligibility for CAT relief. See Mu Xiang Lin, 432 F.3d at 7 160. 8 For the foregoing reasons, the petition for review is 9 DENIED. As we have completed our review, any stay of 10 removal that the Court previously granted in this petition 11 is VACATED, and any pending motion for a stay of removal in 12 this petition is DISMISSED as moot. Any pending request for 13 oral argument in this petition is DENIED in accordance with 14 Federal Rule of Appellate Procedure 34(a)(2), and Second 15 Circuit Local Rule 34.1(b). 16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19 20 6