         13-2466
         He v. Holder
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A099 683 977
                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 31st day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                      JOSÉ A. CABRANES,
 8                      RICHARD C. WESLEY,
 9                      CHRISTOPHER F. DRONEY,
10                           Circuit Judges.
11
12
13       QI PING HE,
14                Petitioner,
15
16                       v.                                     13-2466
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21
22
23       FOR PETITIONER:               Richard Tarzia, Belle Mead, NJ.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; James E. Grimes, Senior
27                                     Litigation Counsel; Andrew Oliveira,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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       Qi Ping He, a native and citizen of China, seeks review

 6   of a June 7, 2013, decision of the BIA affirming an

 7   Immigration Judge’s (“IJ”) September 23, 2011, denial of

 8   asylum, withholding of removal, and relief under the

 9   Convention Against Torture (“CAT”).     In re Qi Ping He, No.

10   A099 683 077 (B.I.A. Jun. 7, 2013), aff’g No. A099 683 077

11   (Immig. Ct. N.Y. City Sept. 23, 2011).     We assume the

12   parties’ familiarity with the underlying facts and

13   procedural history of this case.

14       Under the circumstances of this case, we have reviewed

15   both the IJ’s and the BIA’s opinions.     Yanqin Weng v.

16   Holder, 562 F.3d 510, 513 (2d Cir. 2009).     The applicable

17   standards of review are well established.     Id. at 513-14.

18   Because He does not challenge the IJ’s denial of CAT relief,

19   this issue is waived.    See Yueqing Zhang v. Gonzales, 426

20   F.3d 540, 545 n.7 (2d Cir. 2005).

21       To be eligible for asylum, an applicant must establish

22   his status as a “refugee” under the INA.     8 U.S.C.

23   § 1158(b)(1)(B).    The applicant may do so by demonstrating

                                    2
 1   either that he has suffered “persecution” or that he has a

 2   “well-founded fear of persecution on account of race,

 3   religion, nationality, membership in a particular social

 4   group, or political opinion.”       8 U.S.C. § 1101(a)(42).

 5       The agency reasonably determined that He failed to

 6   establish past persecution.     Contrary to He’s argument, this

 7   Court has held that an individual is not per se eligible for

 8   asylum based on the sterilization of a spouse because

 9   “applicants can become candidates for asylum relief only

10   based on persecution that they themselves have suffered or

11   must suffer.”   Shi Liang Lin v. U.S. Dep’t. of Justice, 494

12   F.3d 296, 308 (2d Cir. 2007)(en banc).       He’s wife’s

13   sterilization, alone, does not constitute past persecution

14   as to He.   As the agency observed, He testified that he had

15   no contact with police, nor did he have any personal

16   encounters with family planning officials.

17       While a fine may rise to the level of persecution, He

18   has not offered any proof that he suffered “severe economic

19   disadvantage” based on the 300 Yuan fine his family paid

20   Chinese officials.   In re T-Z-, 24 I. & N. Dec. 163, 173

21   (BIA 2007); see also Guan Shan Liao v. U.S. DOJ, 293 F.3d

22



                                     3
 1   61, 70 (2d Cir. 2002).   In the absence of such proof, He

 2   cannot show past persecution based on this fine.

 3       Absent past persecution, an alien may establish

 4   eligibility for asylum by demonstrating a well-founded fear

 5   of future persecution.   See 8 C.F.R. § 1208.13(b)(2); see

 6   also Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.

 7   2004).   The agency reasonably concluded that He failed to

 8   demonstrate such a fear based on his claim that he would be

 9   detained and fined for illegally leaving China.    “Punishment

10   for violation of a generally applicable criminal law is not

11   persecution.”   Saleh v. U.S. DOJ, 962 F.2d 234, 239 (2d Cir.

12   1992).   He has not submitted any evidence that his

13   anticipated detention or fine for illegal departure from

14   China would be based on a motive other than law enforcement.

15   Nor does the record contain any evidence that his punishment

16   would rise to the level of persecution.   According to the

17   2007 Department of State Profile of Country Conditions,

18   Chinese citizens returning after illegally entering other

19   countries were typically “detained long enough . . . for

20   relatives to arrange their travel home,” and “[f]ines are

21   rare.”   The same report states that “U.S. officials in China

22   have not confirmed any cases of abuse of persons returned to


                                   4
 1   China from the United States for illegal entry.”

 2   Consequently, He’s fear of future persecution is not

 3   objectively reasonable.   See Ramsameachire, 357 F.3d at 178.

 4   He’s testimony of his subjective fear is not enough to

 5   establish a well-founded fear of future persecution.     Jian

 6   Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the

 7   absence of solid support in the record for [petitioner’s]

 8   assertion that he will be subjected to [persecution], his

 9   fear is speculative at best.”).

10       As He has failed to establish his eligibility for

11   asylum it follows that he cannot satisfy the higher standard

12   for withholding of removal.    Paul v. Gonzales, 444 F.3d 148,

13   155-56 (2d Cir. 2006).

14       For the foregoing reasons, the petition for review is

15   DENIED.

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




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