Qiaoxin Zheng v. Holder

10-1030-ag Zheng v. Holder BIA DeFonzo, IJ A096 060 634 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 5th day of April, two thousand twelve. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 ROSEMARY S. POOLER, 10 DEBRA ANN LIVINGSTON, 11 Circuit Judges. 12 _______________________________________ 13 14 QIAOXIN ZHENG, 15 Petitioner, 16 17 v. 10-1030-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _______________________________________ 23 24 FOR PETITIONER: Theodore N. Cox, New York, NY. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Richard M. Evans, Assistant 28 Director; Ann Carroll Varnon, 29 Attorney, Office of Immigration 30 Litigation, United States Department 31 of Justice, 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 Petitioner Qiaoxin Zheng, a native and citizen of 6 China, seeks review of a March 15, 2010 order of the BIA 7 vacating immigration judge (“IJ”) Paul A. DeFonzo’s July 31, 8 2008, pretermitting of her application for asylum and 9 denying that application, and affirming the IJ’s denial of 10 her applications for withholding of removal and relief under 11 the Convention Against Torture (“CAT”). In re Qiaoxin 12 Zheng, No. A096 060 634 (B.I.A. March 15, 2010); aff’g No. 13 A093 060 634 (Immig. Ct. N.Y. City July 31, 2008). We 14 assume the parties’ familiarity with the underlying facts, 15 the procedural history, and the issues presented for review. 16 Under the circumstances of this case, we review both 17 the IJ’s and the BIA’s decisions. See Xue Hong Yang v. U.S. 18 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The 19 applicable standards of review are well-established. See 8 20 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 21 F.3d 510, 513 (2d Cir. 2009). 22 23 2 1 The BIA did not err in finding that Zheng failed to 2 establish a well-founded fear of persecution on account of 3 the birth of her two children, one in China and one in the 4 United States. Zheng’s claim is largely foreclosed by our 5 decision in Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 6 2008), which found no error in the conclusion that evidence 7 similar to that submitted by Zheng is insufficient to 8 establish an alien’s prima facie eligibility for relief. 9 Id. at 164-66. 10 The report from Susanna Liu was not material to Zheng’s 11 claim because it references mandatory sterilization without 12 indicating that sterilizations are performed by force. See 13 Jian Hui Shao, 546 F.3d at 165, 172. Zheng also submitted 14 letters from family and friends claiming to have been 15 forcibly sterilized following the birth of their children in 16 China, and the affidavit from Jin Fu Chen, a man claiming to 17 have been forcibly sterilized in China after fathering 18 children in Japan. The BIA reasonably concluded that these 19 were not material because they did not detail the forced 20 sterilizations of similarly situated individuals, i.e., 21 Chinese nationals returning to China with children who are 22 citizens of another country (the United States). See id. at 23 160-61, 170-71. 3 1 Furthermore, a reasonable fact-finder would not be 2 compelled to conclude that Zheng demonstrated a reasonable 3 possibility that the imposition of fines for the birth of 4 her children would cause her severe harm amounting to 5 economic persecution. See Matter of T-Z-, 24 I. & N. Dec. 6 163, 170-75 (B.I.A. 2007); see also Jian Hui Shao, 546 F.3d 7 at 161-62, 164 n.25. Although Zheng testified that her 8 cousin was fined 80,000 RMB for violating the family 9 planning policy, the BIA reasonably found that the fine 10 imposed on Zheng’s cousin did not compel the conclusion that 11 Zheng would face a similar fine because her cousin was not 12 similarly situated, having given birth to three children, 13 all of them in China, and the cousin did not explain how the 14 fine was calculated. See Jian Hui Shao, 546 F.3d at 161-62 15 (noting that while “in some cases, severe economic penalties 16 could be as effective as physical pressure in forcing an 17 involuntary sterilization,” the record failed to establish 18 that the petitioner himself would suffer “severe economic 19 compulsion”). 20 Zheng contends that the BIA committed reversible error 21 by failing to address her claim that she suffered past 22 persecution on account of her practice of Christianity in 23 China. However, the IJ noted on this remand that Zheng’s 4 1 past persecution claim had previously been found not 2 credible and (contrary to Zheng’s contention in her brief), 3 the IJ did not overrule that adverse credibility 4 determination in his decision. Likewise, the BIA noted that 5 Zheng’s past persecution claim was “previously resolved in a 6 prior hearing” where it was found “not credible.” Thus, the 7 BIA properly declined to revisit her past persecution claim. 8 See Matter of Patel, 16 I. & N. Dec. 600, 601 (BIA 1978). 9 Finally, the agency did not err in finding that Zheng 10 failed to establish a well-founded fear of persecution based 11 on her Christian faith. Zheng’s brief argues only that the 12 BIA erred in denying that claim in conclusory fashion. 13 However, the IJ did discuss Zheng’s well-founded fear at 14 length and determined that she failed to establish an 15 objectively reasonable fear of persecution based on her 16 religious practice in the United States. Zheng’s brief does 17 not challenge any of the IJ’s findings on this point and, 18 although the BIA affirmed the IJ’s determination in a single 19 sentence, it was not required to provide any further 20 reasoning. See 8 C.F.R. § 1003.1(e)(4) (the BIA, on appeal, 21 may affirm the IJ’s decision “without opinion”). 22 23 5 1 For the foregoing reasons, the petition for review is 2 DENIED. As we have completed our review, the pending motion 3 for a stay of removal in this petition is DISMISSED as moot. 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7 8 6