09-2246-ag
Ou v. Holder
BIA
Laforest, IJ
A099 670 040
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 13 th day of January, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROGER J. MINER,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12
13 _______________________________________
14
15 JIA XIN OU,
16 Petitioner,
17
18 v. 09-2246-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL, BOARD OF IMMIGRATION APPEALS
22 Respondents.
23 _______________________________________
1 FOR PETITIONER: Henry Zhang, New York, New York.
2
3 FOR RESPONDENTS: Tony West, Assistant Attorney
4 General, Civil Division; Janice
5 Redfern, Senior Litigation Counsel;
6 Scott Rempell, Trial Attorney,
7 Office of Immigration Litigation,
8 United States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review
14 is DENIED.
15 Jia Xin Ou, a native and citizen of the People’s
16 Republic of China, seeks review of an April 30, 2009 order
17 of the BIA affirming the October 26, 2007 decision of
18 Immigration Judge (“IJ”) Brigitte Laforest, which denied his
19 application for asylum, withholding of removal, and relief
20 under the Convention Against Torture (“CAT”). In re Jia Xin
21 Ou, No. A099 670 040 (B.I.A. Apr. 30, 2009), aff’g No. A099
22 670 040 (Immig. Ct. N.Y. City Oct. 26, 2007). We assume the
23 parties’ familiarity with the underlying facts and
24 procedural history of this case.
25 We review the IJ’s decision as supplemented by the BIA.
26 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
27 The applicable standards of review are well-settled. See
2
1 8 U.S.C. § 1252(b)(4)(B); Manzur v. U.S. Dep't of Homeland
2 Sec., 494 F.3d 281, 289 (2d Cir. 2007); see also Salimatou
3 Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
4 Contrary to Ou’s argument, the IJ properly based her
5 denial of his applications for relief on Shi Liang Lin v.
6 U.S. Dep’t of Justice, 494 F.3d 296, 309-12 (2d Cir. 2007)
7 (en banc), the controlling authority at the time she
8 rendered her oral decision, rather than based on the law as
9 it stood on the day of Ou’s April 2007 merits hearing. The
10 IJ could not have made her decision prior to DHS’s
11 completion of the requisite background checks. See 8 C.F.R.
12 § 1003.47(g) (requiring all identity, law enforcement, and
13 security investigations to be completed prior to an IJ
14 granting an application for immigration relief). Once these
15 background checks were complete, the IJ was bound to apply
16 the law as it stood on the day of her decision. See Harper
17 v. Virginia Dep’t of Taxation, 509 U.S. 86, 97-98 (1993)
18 (finding that courts are bound “to apply a rule of federal
19 law retroactively after the case announcing the rule has
20 already done so” in all cases still open on direct review).
21 Furthermore, we find no error in the agency’s denial of
22 relief. Lin does not contest that he was not eligible for
3
1 asylum based on his wife’s forced abortion. See Shi Liang
2 Lin, 494 F.3d at 309-12. Moreover, contrary to Ou’s
3 assertion, the factual record in the case was “adequately
4 developed” with respect to the issue of Ou’s “other
5 resistance” to the Chinese family planning policy. See Shu
6 Wen Sun v. BIA, 510 F.3d 377, 381 n.5 (2d Cir. 2007) (per
7 curiam).
8 Moreover, the agency reasonably determined that even if
9 Ou did engage in resistance to China’s family planning
10 policy, he failed to demonstrate that he was persecuted on
11 account of that resistance. See Shi Liang Lin, 494 F.3d at
12 313 (citing Matter of S-L-L, 24 I. & N. Dec. 1, 10 (B.I.A.
13 2005)). Nothing in the record compels the conclusion that
14 Ou’s arrest, detention, and mistreatment upon his
15 repatriation to China were as a result of his resistance to
16 China’s population control policy as opposed to his
17 violation of the country’s immigration laws. See Saleh v.
18 U.S. Dep't of Justice, 962 F.2d 234, 239 (2d Cir. 1992)
19 (“[P]unishment for violation of a generally applicable
20 criminal law is not persecution.”).
21 Because Ou’s claims for withholding of removal and CAT
22 relief were based on the same factual predicate as his
4
1 asylum claim, and the BIA reasonably found that he was
2 unable to meet his burden for asylum, he was necessarily
3 unable to meet the higher standard required to succeed on
4 his claim for withholding of removal and CAT relief. See
5 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong
6 Yang v. U.S. Dep’t. of Justice, 426 F.3d 520, 523 (2d Cir.
7 2005).
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(b).
16
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20 By:___________________________
5