         10-509-ag
         Yang v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A097 814 806
                           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 24th day of February, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                ROBERT D. SACK,
 9                DEBRA ANN LIVINGSTON,
10                       Circuit Judges.
11       _______________________________________
12
13       DONG CAI YANG,
14                Petitioner,
15
16                        v.                                    10-509-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Dong Cai Yang, pro se, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Susan K. Houser, Senior
28                                     Litigation Counsel; Jacob A.
29                                     Bashyrov, Trial Attorney, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
32                                     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       Petitioner Dong Cai Yang, a native and citizen of

 6   China, seeks review of a January 14, 2010, decision of the

 7   BIA affirming the April 3, 2008, decision of Immigration

 8   Judge (“IJ”) Thomas J. Mulligan denying his application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).   In re Dong Cai Yang,

11   No. A097 814 806 (B.I.A. Jan. 14, 2010), aff’g No. A097 814

12   806 (Immig. Ct. N.Y. City Apr. 3, 2008).   We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we review the

16   IJ’s decision as modified by the BIA decision.    See Xue Hong

17   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

18   2005).   The applicable standards of review are

19   well-established.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

20   v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21       Because the BIA did not affirm the IJ’s adverse

22   credibility determination, we assume Yang’s credibility for

23   the purposes of review.   See Diallo v. INS, 232 F.3d 279,

                                   2
 1   288 (2d Cir. 2000).     Even assuming credibility, substantial

 2   evidence supports the agency’s conclusion that Yang failed

 3   to demonstrate his eligibility for asylum, withholding of

 4   removal, or CAT relief based on his alleged illegal

 5   departure from China.

 6       Yang testified that he left China with a passport which

 7   was inspected when he left the country, and that he did not

 8   know whether he had used a valid exit visa. He now contends

 9   that the agency erred in finding that his departure from

10   China was not illegal, because snakeheads bribed officials

11   to let him out.    Given his admission that he used his

12   passport to leave the country, this argument does not compel

13   the conclusion that his departure was not illegal.     See

14   Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where

15   the evidence would support either of competing inferences,

16   the fact that this Court might have drawn one inference does

17   not entitle it to overturn the trial court’s choice of the

18   other.”).

19       Moreover, the agency did not err in finding that he did

20   not meet his burden of establishing a well-founded fear of

21   future persecution or a likelihood of persecution or

22   torture.    In support of his application, Yang presented

23   country conditions evidence which he argues established that

                                     3
 1   he would be subjected to persecution.   However, the agency

 2   considered this evidence and reasonably concluded that this

 3   evidence indicated that most returnees would be, at most,

 4   subjected to a brief detention.   Because Yang did not submit

 5   any particularized evidence showing that he would be

 6   persecuted or tortured, the record does not compel the

 7   conclusion that Yang met his burden of proof.   See Huang v.

 8   INS, 421 F.3d 125, 128 (2d Cir. 2005) (an applicant for

 9   asylum must demonstrate that a “reasonable person in the

10   petitioner’s circumstances would fear persecution if

11   returned to his native country”); Mu Xiang Lin v. U.S. Dep't

12   of Justice, 432 F.3d 156, 157-60 (2d Cir. 2005) (holding

13   that a petitioner is not “entitled to CAT protection based

14   solely on the fact that she is part of the large class of

15   persons who have illegally departed China,” and that beyond

16   generalized country conditions reports stating that some

17   Chinese prisoners have been tortured, an applicant for CAT

18   relief must submit particularized evidence suggesting that

19   he is likely to be subject to torture in Chinese prisons).

20   Accordingly, the agency reasonably denied Yang’s application

21   for asylum, withholding of removal, and CAT relief.    Id.;

22   see also Ramsameachire v. Ashcroft, 357 F.3d 169, 178, 185

23   (2d Cir. 2004) (explaining that to establish eligibility for

                                  4
 1   asylum an applicant must demonstrate a well-founded fear of

 2   future persecution and to establish eligibility for

 3   withholding of removal or CAT relief the applicant must meet

 4   a higher standard of proof and demonstrate a likelihood of

 5   persecution or torture).

 6       Finally, we decline to consider Yang’s unexhausted

 7   argument that the IJ erred in failing to address his claim

 8   for asylum based on China’s family planning policy.      See Lin

 9   Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d

10   Cir. 2007).

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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