         10-410-ag
         Cheng v. Holder
                                                                                        BIA
                                                                                  Elstein, IJ
                                                                               A098 769 783
                            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 eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                GERARD E. LYNCH,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _______________________________________
12
13       CHEN CHENG,
14                Petitioner,
15
16                         v.                                   10-410-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:         Jan Potemkin, New York, New York.
24
25       FOR RESPONDENT:         Tony West, Assistant Attorney General;
26                               Ernesto H. Molina, Jr., Assistant
27                               Director; Gladys M. Steffens Guzmán,
28                               Trial Attorney, Civil Division, Office of
29                               Immigration Litigation, United States
 1                     Department of Justice, Washington, D.C.
 2       UPON DUE CONSIDERATION of this petition for review of a

 3   Board of Immigration Appeals (“BIA”) decision, it is hereby

 4   ORDERED, ADJUDGED, AND DECREED that the petition for review

 5   is DENIED.

 6       Petitioner Chen Cheng, a native and citizen of the

 7   People’s Republic of China, seeks review of a January 8,

 8   2010, decision of the BIA affirming the April 3, 2008,

 9   decision of Immigration Judge (“IJ”) Annette S. Elstein

10   denying Cheng’s application for asylum, withholding of

11   removal, and relief under the Convention Against Torture

12   (“CAT”).     In re Chen Cheng, No. A098 769 783 (B.I.A. Jan. 8,

13   2010), aff’g No. A098 769 783 (Immig. Ct. N.Y. City Apr. 3,

14   2008).     We assume the parties’ familiarity with the

15   underlying facts and procedural history in this case.

16       Under the circumstances of this case, we review the

17   IJ’s decision as supplemented by the BIA decision.       See Yan

18   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).      The

19   applicable standards of review are well established.       See

20   8 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546 F.3d

21   138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529

22   F.3d 99, 110 (2d Cir. 2008).

23

                                     2
 1   I.          Asylum and Withholding of Removal

 2        A.     Past Persecution

 3        Contrary to the government’s assertion that Cheng

 4   failed to exhaust any challenge to the IJ’s determination

 5   that the fine imposed on him constituted persecution, Cheng

 6   argued before the BIA that the fine was an unreasonable

 7   penalty imposed to punish him for violating the family

 8   planning policy.    Because the issue was raised below, it has

 9   been sufficiently exhausted.    However, although Cheng

10   testified that the fine constituted “about seven months of

11   [his] income,” he provided no evidence of his net worth at

12   the time of the fines, or any other facts that would make it

13   possible to evaluate his personal financial circumstances in

14   relation to the fine.    See Guan Shan Liao v. United States

15   Dep’t of Justice, 293 F.3d 61, 68, 70 (2d Cir. 2002)(finding

16   that although economic deprivation may constitute

17   persecution, “an asylum applicant must offer some proof that

18   he suffered a deliberate imposition of substantial economic

19   disadvantage.”) (internal quotation marks and citation

20   omitted).    Absent such proof, we cannot assess whether or

21   not the fine constituted a “substantial economic

22   disadvantage” to him as required for a finding of past


                                     3
 1   persecution.     See id.; see also 8 U.S.C. § 1229a(c)(4)(B)

 2   (noting that the applicant bears the burden of proof to

 3   establish the elements of his claim).

 4       B.      Well-Founded Fear of Future Persecution

 5               1.   “Other Resistance Claim”

 6       As the agency noted, despite Cheng’s bald assertion

 7   that, upon returning to China, Chinese authorities will

 8   impose additional punishments on him, no evidence indicated

 9   that Chinese authorities had any remaining interest in Cheng

10   based on his resistance to the family planning policy.        See

11   Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)

12   (noting that a fear is not objectively reasonable if it

13   lacks “solid support” in the record and is merely

14   “speculative at best”).     Given the lack of evidence, the

15   agency reasonably found that Cheng failed to meet his burden

16   of proof.

17       2.      Illegal Departure Claim

18       Despite Cheng’s assertion that he established a well-

19   founded fear of persecution based on his illegal departure

20   from China, the possibility that an alien will be prosecuted

21   under a generally applicable statute does not, by itself,

22   demonstrate that the alien has a well-founded fear of


                                     4
 1   persecution on account of a protected ground.       See Qun Yang

 2   v. McElroy, 277 F.3d 158, 163 n.5 (2d Cir. 2002).       Cheng

 3   points to no evidence, and relies only on the non-binding

 4   decisions of other circuits.    See, e.g., United States v.

 5   Mang Sun Wong, 884 F.2d 1537, 1542 (2d Cir. 1989)

 6   (indicating that we are not bound to follow decisions of

 7   another circuit).    Accordingly, the BIA reasonably

 8   determined that Cheng failed to meet his burden of proof

 9   that he had a well-founded fear of persecution based on his

10   illegal departure from China.       See Qun Yang, 277 F.3d at 163

11   n.5.

12   II. CAT Claim

13          Contrary to the government’s assertion that Cheng

14   waives any challenge to the agency’s denial of CAT relief,

15   Cheng asserts that the “evidence submitted demonstrate[d]

16   that China persecutes and tortures those who flee China

17   without prior authorization.”       However, a petitioner is not

18   “entitled to CAT protection based solely on the fact that

19   she is part of the large class of persons who have illegally

20   departed China.”    Mu Xiang Lin v. U.S. Dep’t of Justice, 432

21   F.3d 156, 160 (2d Cir. 2005)(emphasis in original); see also

22   Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.


                                     5
 1   2003).    Because Cheng produced only generalized evidence

 2   concerning the treatment of prisoners in China without

 3   submitting particularized evidence indicating that he is

 4   likely to be tortured or that illegal emigrants are tortured

 5   upon their return to China, he failed to demonstrate his

 6   eligibility for CAT relief.    See Mu Xiang Lin, 432 F.3d at

 7   160.

 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 34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk
18
19
20




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