10-1450-ag
Jiang v. Holder
BIA
Hom, IJ
A097 512 139
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
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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 13th day of April, two thousand twelve.
PRESENT:
RALPH K. WINTER,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_______________________________________
JING BIN JIANG,
Petitioner,
v. 10-1450-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF
JUSTICE, IMMIGRATION & NATURALIZATION SERVICE,
Respondents.
_______________________________________
FOR PETITIONER: Jing Bin Jiang, pro se, Brooklyn,
NY.
FOR RESPONDENTS: Tony West, Assistant Attorney
General; Douglas E. Ginsburg,
Assistant Director; Erik M. Fagley,
Paralegal Specialist; Jessica R. C.
Malloy, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
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.
Jing Bin Jiang, a native and citizen of the People’s
Republic of China, seeks review of a March 22, 2010 order of
the BIA affirming the February 4, 2008 decision of
Immigration Judge (“IJ”) Sandy K. Hom, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Jing
Bin Jiang, No. A097 512 139 (B.I.A. Mar. 22, 2010), aff’g
No. A097 512 139 (Immig. Ct. N.Y. City Feb. 4, 2008). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA decision, and
assume Jiang’s credibility. See Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (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).
Economic harm may constitute persecution; however, “an
applicant for asylum must demonstrate a severe economic
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disadvantage.” Matter of T-Z-, 24 I. & N. Dec. 163, 173
(BIA 2007) (internal quotation marks omitted). At a
minimum, Jiang would need to demonstrate the “deliberate
imposition of a substantial economic disadvantage” in order
to show that the economic harm he suffered rose to the level
of persecution. See Guan Shan Liao v. U.S. Dep’t of
Justice, 293 F.3d 61, 67 (2d Cir. 2002). The disadvantages
to which Jiang testified included paying extra fees and
higher tuition costs for his education, having to
discontinue his education after junior high school due to
financial constraints, and having difficulty obtaining a
high paying job. He additionally stated that his mother had
a difficult time supporting the family because of the fines
assessed against her. These economic difficulties do not
“involve noticeably more than mere loss of social advantages
or physical comforts.” See Matter of T-Z-, 24 I. & N. Dec.
at 173; see also Guan Shan Liao, 293 F.3d at 67.
Furthermore, as noted by the BIA, Jiang has not
presented any evidence, such as country reports, to explain
“how his form of educational and financial hardships rose to
the level of persecution, nor has he compared his level of
education or economic opportunities to others in the same
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region or province in China” in order to make possible an
assessment of his degree of economic disadvantage. See Guan
Shan Liao, 293 F.3d at 67 (concluding that the agency
reasonably determined that petitioner failed to demonstrate
economic persecution where he did not present testimony or
other evidence of his income in China, his net worth at the
time of the fine, or any other facts that would make it
possible to evaluate his personal financial circumstances in
relation to the fine). Accordingly, as the agency
concluded, Jiang failed to demonstrate that he was subject
to economic persecution.
Because the agency reasonably concluded that Jiang did
not establish past persecution, he is not entitled to a
presumption of future persecution. See 8 C.F.R.
§ 1208.16(b)(1); Ramsameachire v. Ashcroft, 357 F.3d 169,
178 (2d Cir. 2004). Thus, because Jiang did not demonstrate
past economic persecution, or a separate well-founded fear
of future persecution, the BIA did not err in denying his
application for asylum. See 8 C.F.R. § 1208.13(b)(1), (2);
Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).
Furthermore, because Jiang was unable to show the objective
likelihood of persecution needed to make out an asylum
4
claim, he was necessarily unable to meet the higher standard
required to succeed on a claim for withholding of removal.
See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006);
Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991). Finally,
the issues decided by this Court in its February 2007 Order
are not subject to relitigation. See Bank of New York v.
First Millennium, Inc., 607 F.3d 905, 918 (2d Cir. 2010)
(“Otherwise known as res judicata, claim preclusion bars a
subsequent action - involving either the same plaintiffs or
parties in privity with those plaintiffs - from asserting
claims that were, or could have been, raised in a prior
action that resulted in an adjudication on the merits.”);
see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327
(1979). Accordingly, Jiang is barred from relitigating his
claims for asylum, withholding of removal, and protection
under CAT because of his parents’ alleged mistreatment,
China’s coercive family planning measures, or his illegal
departure.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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