09-2913-ag
Cheng v. Holder
BIA
Weisel, IJ
A 099 661 835
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.
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 9 th day of March, two thousand ten.
PRESENT:
JOSÉ A. CABRANES,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
______________________________________
YOU XING CHENG,
Petitioner,
v. 09-2913-ag
NAC
ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL,
Respondent.
______________________________________
FOR PETITIONER: David A. Bredin, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Terri J. Scadron, Assistant
Director; Greg D. Mack, Senior
Litigation Counsel; Lauren Ritter,
Law Clerk, Office of Immigration
Litigation, 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.
Petitioner You Xing Cheng, a native and citizen of China,
seeks review of the June 23, 2009 order of the BIA affirming
the October 10, 2007 decision of Immigration Judge (“IJ”)
Robert D. Weisel denying his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re You Xing Cheng, No. A 099 661
835 (B.I.A. June 23, 2009), aff’g No. A 099 661 835 (Immig.
Ct. N.Y. City Oct. 10, 2007). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we review both the
IJ’s and the BIA’s decisions. See Yan Chen v. Gonzales, 417
F.3d 268, 271 (2d Cir. 2005). The applicable standards of
review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
The agency correctly concluded that Cheng was not
eligible for asylum based on his wife’s forced abortion and
IUD insertion. See Shi Liang Lin v. U.S. Dep’t of Justice,
2
494 F.3d 296, 309-10 (2d Cir. 2007). Nonetheless, even though
Cheng was not per se eligible for relief on that basis, he
could still qualify for relief by demonstrating that he
engaged in “other resistance” to the family planning policy
and that he was persecuted or had a well-founded fear of
persecution on account of that resistance. See 8 U.S.C.
§ 1101(a)(42); Shi Liang Lin, 494 F.3d at 313. Assuming,
arguendo, that Cheng established the requisite resistance, the
agency nevertheless reasonably determined that he failed to
demonstrate related past or feared persecution.
Although Cheng was insulted, pushed, and kicked by
authorities when he attempted to prevent them from taking his
wife for an IUD insertion and forced abortion, the BIA
reasonably determined that this physical mistreatment did not
manifest past persecution, especially because Cheng was not
detained at the time. Cf. Beskovic v. Gonzales, 467 F.3d 223,
226 (2d Cir. 2006) (observing that physical mistreatment “must
be assessed with regard to the context in which [it] occurs,”
and that conduct “that, in other contexts, could fairly be
characterized as the ‘mere annoyance and distress’ of
harassment, can take on an entirely different character when
officially inflicted on an individual while detained on
3
account of protected grounds” (internal citation omitted)).
The BIA also reasonably determined that although family
planning officials continued to inquire as to Cheng’s
whereabouts, this alone did not support a well-founded fear
that he would be persecuted if returned to China. See Jian
Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding
that absent “solid support in the record” for petitioner’s
claim that he would be persecuted under family planning
policy, his fear was “speculative at best”). Indeed, Cheng
did not show that authorities would do anything more than fine
him upon his return. See Guan Shan Liao v. U.S. Dep’t of
Justice, 293 F.3d 61, 70 (2d Cir. 2002) (observing that
economic deprivation may constitute persecution only where
applicant offers proof of “deliberate imposition of
substantial economic disadvantage”); Saleh v. U.S. Dep't of
Justice, 962 F.2d 234, 239 (2d Cir. 1992) (“[P]unishment for
violation of a generally applicable criminal law is not
persecution.”).
The agency’s denial of Cheng’s application for CAT relief
was similarly supported by the record. 1 Cheng contends that
1
Cheng abandons his withholding of removal claim
before this Court.
4
the IJ failed to consider evidence regarding country
conditions or address the possibility of future torture if he
were returned to China. To the contrary, the IJ explicitly
addressed the possibility that Cheng could be tortured in the
future, finding that “[a]lthough it is indicated that police
have come to his home repeatedly to look for him, seeking to
arrest him, there is no indication that they want to torture
him.” In re Cheng You Xing, No. A 099 661 835, at 9. This
finding was not in error. See Jian Xing Huang, 421 F.3d at
129; see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 342 (2d Cir. 2006) (holding that the weight afforded
evidence lies largely within the IJ’s discretion). The IJ
also properly found that Cheng failed to demonstrate that he
would be tortured due to his illegal departure. See Mu Xiang
Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.
2005); Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.
2003).
Furthermore, although the IJ did not discuss country
conditions evidence in detail, we do not require an IJ to do
so. See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.
2006) (observing that BIA need not “expressly parse or refute
on the record each individual argument or piece of evidence
5
offered by the petitioner” (internal quotation marks
omitted)); see also Xiao Ji Chen, 471 F.3d at 337 n.17
(presuming that agency “has taken into account all of the
evidence before [it], unless the record compellingly suggests
otherwise”). Insofar as Cheng faults the agency for relying
on “biased and outdated” country conditions reports, Pet’r’s
Br. at 30, the 2007 State Department report in the record was
not outdated. Indeed, the IJ rendered his oral decision in
October 2007, the same year the report was released. Cheng’s
unamplified claim that such reports are biased is equally
meritless in light of our holding that State Department
reports are “probative” and that the agency does not err in
relying on them. See Tu Lin v. Gonzales, 446 F.3d 395, 400
(2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any pending motion
for a stay of removal in this petition is DISMISSED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6