10-1805-ag
Jiang v. Holder
BIA
Videla, IJ
A077 322 357
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
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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 15th day of March, two thousand eleven.
PRESENT:
ROGER J. MINER,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
______________________________________
SHU X. JIANG,
Petitioner,
v. 10-1805-ag
NAC
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Gary J. Yerman, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Aviva L.
Poczter, Senior Litigation Counsel;
Christopher P. McGreal, 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.
Shu Xing Jiang, a native and citizen of the People’s
Republic of China, seeks review of an April 9, 2010 order of
the BIA affirming the June 9, 2008, decision of Immigration
Judge (“IJ”) Gabriel C. Videla, denying his applications for
asylum and withholding of removal. In re Shu Xing Jiang,
No. A077 322 357 (B.I.A. Apr. 9, 2010), aff’g No. A077 322
357 (Immigr. Ct. N.Y. City June 9, 2008). We assume the
parties’ familiarity with the underlying facts and
procedural history of this case.
Under the circumstances of this case, we review the
IJ’s decision as modified by the BIA decision, i.e., minus
the arguments for denying relief that were rejected by the
BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
520, 522 (2d Cir. 2005). The applicable standards of review
are well-established. See 8 U.S.C. § 1252(b)(4)(B)(“[T]he
administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.”); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
2
Cir. 2009)(upholding the IJ’s factual findings if they are
supported by “reasonable, substantial and probative evidence
in the record” and reviewing “de novo questions of law and
the [BIA’s] application of law to undisputed fact”(internal
citations omitted; alteration in original)).
Contrary to Jiang’s assertions, the IJ did not fail to
develop the record or violate Jiang’s right to due process.
Jiang bore the burden to establish his eligibility for
asylum, and because egregious circumstances are not present
here, he is bound by his decision to follow his counsel’s
tactical advice to rest on the previous record relating to
economic persecution and to refuse to answer additional
questions at his June 2008 merits hearing. See Changzu
Jiang v. Mukasey, 522 F.3d 266, 271 (2d Cir. 2008)(per
curiam) (“It is not unusual or egregious for counsel to make
tactical decisions that ultimately fizzle and redound to the
client’s detriment.” (internal quotation marks omitted)); 8
C.F.R. § 1208.13(a).
Given the evidence in the record and assuming Jiang’s
testimony to be credible, the agency reasonably determined
that Jiang did not establish past economic persecution based
on the loss of his teaching job and employer-provided
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housing and his payment of a 200 RMB fine, because he did
not present any evidence of his financial situation and
testified that he was able to find other work. See Guan
Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.
2002) (holding that the agency reasonably concluded that the
petitioner failed to demonstrate economic persecution
because he did not produce evidence of his “income in China,
his net worth at the time of the fines, or any other facts
that would make it possible . . . to evaluate his personal
financial circumstances in relation to the fines” imposed by
the government); see also In re T-Z-, 24 I. & N. Dec. 163,
171 (B.I.A. May 9, 2007) (recognizing economic persecution
as “the deliberate imposition of severe economic
disadvantage or the deprivation of liberty, food, housing,
employment or other essentials of life” (emphasis and
internal quotation marks omitted)). Other than asserting
that this economic difficulty would persist if he returned
to China, Jiang does not challenge the agency’s
determination that he failed to establish a well-founded
fear of persecution. Because Jiang did not establish that
he suffered past economic persecution, he is not entitled to
a presumption of future persecution on that basis. See 8
C.F.R § 1208.13(b). Moreover, as Jiang is unable to
4
establish his eligibility for asylum, his application for
withholding of removal, which is based on the same factual
predicate, fails as well. See Paul v. Gonzales, 444 F.3d
148, 155-56 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, then pending
motion for a stay of removal in this petition is DISMISSED
as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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