13-2466
He v. Holder
BIA
Videla, IJ
A099 683 977
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 31st day of October, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11
12
13 QI PING HE,
14 Petitioner,
15
16 v. 13-2466
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21
22
23 FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; James E. Grimes, Senior
27 Litigation Counsel; Andrew Oliveira,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Qi Ping He, a native and citizen of China, seeks review
6 of a June 7, 2013, decision of the BIA affirming an
7 Immigration Judge’s (“IJ”) September 23, 2011, denial of
8 asylum, withholding of removal, and relief under the
9 Convention Against Torture (“CAT”). In re Qi Ping He, No.
10 A099 683 077 (B.I.A. Jun. 7, 2013), aff’g No. A099 683 077
11 (Immig. Ct. N.Y. City Sept. 23, 2011). We assume the
12 parties’ familiarity with the underlying facts and
13 procedural history of this case.
14 Under the circumstances of this case, we have reviewed
15 both the IJ’s and the BIA’s opinions. Yanqin Weng v.
16 Holder, 562 F.3d 510, 513 (2d Cir. 2009). The applicable
17 standards of review are well established. Id. at 513-14.
18 Because He does not challenge the IJ’s denial of CAT relief,
19 this issue is waived. See Yueqing Zhang v. Gonzales, 426
20 F.3d 540, 545 n.7 (2d Cir. 2005).
21 To be eligible for asylum, an applicant must establish
22 his status as a “refugee” under the INA. 8 U.S.C.
23 § 1158(b)(1)(B). The applicant may do so by demonstrating
2
1 either that he has suffered “persecution” or that he has a
2 “well-founded fear of persecution on account of race,
3 religion, nationality, membership in a particular social
4 group, or political opinion.” 8 U.S.C. § 1101(a)(42).
5 The agency reasonably determined that He failed to
6 establish past persecution. Contrary to He’s argument, this
7 Court has held that an individual is not per se eligible for
8 asylum based on the sterilization of a spouse because
9 “applicants can become candidates for asylum relief only
10 based on persecution that they themselves have suffered or
11 must suffer.” Shi Liang Lin v. U.S. Dep’t. of Justice, 494
12 F.3d 296, 308 (2d Cir. 2007)(en banc). He’s wife’s
13 sterilization, alone, does not constitute past persecution
14 as to He. As the agency observed, He testified that he had
15 no contact with police, nor did he have any personal
16 encounters with family planning officials.
17 While a fine may rise to the level of persecution, He
18 has not offered any proof that he suffered “severe economic
19 disadvantage” based on the 300 Yuan fine his family paid
20 Chinese officials. In re T-Z-, 24 I. & N. Dec. 163, 173
21 (BIA 2007); see also Guan Shan Liao v. U.S. DOJ, 293 F.3d
22
3
1 61, 70 (2d Cir. 2002). In the absence of such proof, He
2 cannot show past persecution based on this fine.
3 Absent past persecution, an alien may establish
4 eligibility for asylum by demonstrating a well-founded fear
5 of future persecution. See 8 C.F.R. § 1208.13(b)(2); see
6 also Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.
7 2004). The agency reasonably concluded that He failed to
8 demonstrate such a fear based on his claim that he would be
9 detained and fined for illegally leaving China. “Punishment
10 for violation of a generally applicable criminal law is not
11 persecution.” Saleh v. U.S. DOJ, 962 F.2d 234, 239 (2d Cir.
12 1992). He has not submitted any evidence that his
13 anticipated detention or fine for illegal departure from
14 China would be based on a motive other than law enforcement.
15 Nor does the record contain any evidence that his punishment
16 would rise to the level of persecution. According to the
17 2007 Department of State Profile of Country Conditions,
18 Chinese citizens returning after illegally entering other
19 countries were typically “detained long enough . . . for
20 relatives to arrange their travel home,” and “[f]ines are
21 rare.” The same report states that “U.S. officials in China
22 have not confirmed any cases of abuse of persons returned to
4
1 China from the United States for illegal entry.”
2 Consequently, He’s fear of future persecution is not
3 objectively reasonable. See Ramsameachire, 357 F.3d at 178.
4 He’s testimony of his subjective fear is not enough to
5 establish a well-founded fear of future persecution. Jian
6 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the
7 absence of solid support in the record for [petitioner’s]
8 assertion that he will be subjected to [persecution], his
9 fear is speculative at best.”).
10 As He has failed to establish his eligibility for
11 asylum it follows that he cannot satisfy the higher standard
12 for withholding of removal. Paul v. Gonzales, 444 F.3d 148,
13 155-56 (2d Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
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