        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




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