Jin Qi Jiang v. Holder

11-632-ag Jiang v. Holder BIA Balasquide, IJ A073 488 935 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 twelve. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 PETER W. HALL, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _______________________________________ 12 13 JIN QI JIANG, 14 Petitioner, 15 16 v. 11-632-ag 17 NAC 18 ERIC H. HOLDER JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, New York, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; Terri J. Scadron, Assistant 27 Director; Genevieve Holm, Trial 28 Attorney, Office of Immigration 29 Litigation, United States Department 30 of Justice, Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Jin Qi Jiang, a native and citizen of the People’s 6 Republic of China, seeks review of a January 21, 2011 order 7 of the BIA, affirming the December 17, 2008 decision of 8 Immigration Judge (“IJ”) Javier Balasquide, which denied his 9 application for asylum, withholding of removal, and relief 10 under the Convention Against Torture (“CAT”). In re Jin Qi 11 Jiang, No. A073 488 935 (B.I.A. Jan. 21, 2011), aff’g No. 12 A073 488 935 (Immig. Ct. N.Y. City Dec. 17, 2008). We assume 13 the parties’ familiarity with the underlying facts and 14 procedural history in this case. 15 Under the circumstances of this case, we have reviewed 16 the IJ’s decision as modified by the BIA decision. See Xue 17 Hong Yang v. U.S. Dep’t of Justice, 417 F.3d 268, 271 (2d 18 Cir. 2005). The applicable standards of review are well 19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 20 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 21 The sole argument Jiang raises before this Court is 22 that the BIA erred by failing to appropriately evaluate his 23 claim of economic persecution. Although Jiang failed to 2 1 raise this argument before the agency, we consider the issue 2 exhausted because the BIA explicitly addressed it in its 3 decision. See Ruiz-Martinez v. Mukasey, 516 F.3d 102, 112 4 n.7 (2d Cir. 2008) (citing with approval Xian Tuan Ye v. 5 DHS, 446 F.3d 289, 296-97 (2d Cir. 2006); Waldron v. INS, 17 6 F.3d 511, 515 n.7 (2d Cir. 1994)). 7 Here, the BIA reasonably found that Jiang failed to 8 demonstrate that the fines imposed by family planning 9 officials following the birth of his children did not 10 constitute economic persecution. See In re T-Z-, 24 I. & N. 11 Dec. 163, 173 (BIA 2007) (holding that for economic harm to 12 constitute persecution, “an applicant for asylum must 13 demonstrate a severe economic disadvantage”). First, Jiang 14 failed to demonstrate that he suffered a severe economic 15 disadvantage resulting from his having to pay the 2,000 16 renminbi (“RMB”) fine following the birth of his first 17 child, testifying only that he paid the fine in full using 18 funds he borrowed from his neighbors and relatives. 19 Moreover, although Jiang testified that he “didn’t have the 20 money” to pay the 5,000 RMB fine that was assessed following 21 the birth of his second child, he did not present any 22 evidence or testimony of his personal financial situation or 3 1 income at the time, which would support his contention that 2 he suffered a severe economic disadvantage due to the 3 imposition of this fine. See Guan Shan Liao v. U.S. Dep’t. 4 of Justice, 293 F.3d 61, 70 (2d Cir. 2002). 5 Accordingly, the agency reasonably denied Jiang’s 6 application for asylum. Because he failed to meet the 7 burden of asylum, Jiang necessarily failed to meet the 8 higher burden for withholding of removal, as that claim was 9 based on the same factual predicate. See Paul v. Gonzales, 10 444 F.3d 148, 156 (2d Cir. 2006). 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, any stay of 13 removal that the Court previously granted in this petition 14 is VACATED, and any pending motion for a stay of removal in 15 this petition is DISMISSED as moot. Any pending request for 16 oral argument in this petition is DENIED in accordance with 17 Federal Rule of Appellate Procedure 34(a)(2), and Second 18 Circuit Local Rule 34.1(b). 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22 4