         09-3008-ag
         Xia v. Holder
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A098 492 278
                                                                               A098 492 279
                          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 21 st day of July, two thousand ten.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                        Circuit Judges.
11       _______________________________________
12
13       XIAOYI XIA, CHANG YANG,
14                Petitioners,
15
16                       v.                                     09-3008-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               H. Raymond Fasano, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Greg D. Mack, Senior
28                                     Litigation Counsel; Kristina R.
29                                     Sracic, Trial Attorney, Office of
30                                     Immigration Litigation, Washington
31                                     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        Petitioners Xiaoyi Xia and Chang Yang, natives and

6    citizens of the People’s Republic of China, seek review of

7    the June 15, 2009, order of the BIA affirming the October 3,

8    2007, decision of Immigration Judge (“IJ”) Javier E.

9    Balasquide pretermitting their applications for asylum and

10   denying their applications for withholding of removal and

11   relief under the Convention Against Torture (“CAT”).       In re

12   Xiaoyi Xia and Chang Yang, Nos. A098 492 278, A 098 492 279

13   (B.I.A. June 15, 2009), aff’g Nos. A098 492 278, A 098 294

14   279 (Immig. Ct. N.Y. City Oct. 3, 2007).       We assume the

15   parties’ familiarity with the underlying facts and

16   procedural history in this case.

17       Under the circumstances of this case, we review both

18   the IJ’s and BIA’s decisions.       See Yan Chen v. Gonzales, 417

19   F.3d 268, 271 (2d Cir. 2005).       The applicable standards of

20   review are well-established.    See 8 U.S.C. § 1252(b)(4)(B);

21   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

22   Because petitioners do not challenge the agency’s


                                     2
1    pretermission of their asylum applications, we consider only

2    their eligibility for withholding of removal and CAT relief.

3        With respect to petitioners’ claim under the family

4    planning policy, we have previously reviewed the agency’s

5    consideration of evidence similar to that which they

6    submitted and have found no error in its conclusion that

7    such evidence is insufficient to establish an alien’s prima

8    facie eligibility for relief.       See Jian Hui Shao v. Mukasey,

9    546 F.3d 138, 164-72 (2d Cir. 2008); see also Wei Guang Wang

10   v. BIA, 437 F.3d 270, 275 (2d Cir. 2006).       We have also held

11   that petitioners cannot establish a well-founded fear of

12   persecution under the family planning policy based on the

13   birth of only one child.   See Jian Xing Huang v. INS, 421

14   F.3d 125, 129 (2d Cir. 2005) (a fear is not objectively

15   reasonable if it lacks “solid support” in the record and is

16   merely “speculative at best”).

17       With respect to petitioners’ illegal departure claim,

18   the BIA did not err in finding that they failed to establish

19   that any punishment imposed on them for fleeing from China

20   would rise to the level of persecution.       See Saleh v. U.S.

21   Dep't of Justice, 962 F.2d 234, 239 (2d Cir. 1992) (holding

22   that “punishment for violation of a generally applicable


                                     3
1    criminal law is not persecution”).   The BIA reasonably

2    rejected petitioners’ claim that they would be persecuted on

3    account of their membership in a particular social group

4    comprised of “repatriated citizens who had illegally entered

5    the U.S.,” or “Chinese citizens who have brought shame to

6    the People’s Republic of China by violating another

7    [country’s] border laws,” holding that any punishment would

8    be imposed due to their illegal departure rather than their

9    membership in those purported groups.   See 8 U.S.C.

10   § 1158(b)(1)(B) (stating that an asylum applicant’s status

11   as a member of a particular social group-and not some other

12   factor-must be a central reason why that individual is

13   targeted for persecution.)   The BIA also did not err in

14   finding that petitioners failed to submit any particularized

15   evidence indicating that they would be singled out for

16   torture based on their illegal departure.   See Mu Xiang Lin

17   v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.

18   2005); Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d

19   Cir. 2003).   Contrary to petitioners’ assertion, the BIA

20   properly held that, absent some evidence of a specific

21   intent to inflict torture, a likelihood of imprisonment,

22   standing alone, was insufficient to establish their



                                   4
1    eligibility for CAT relief.    See Pierre v. Gonzales, 502

2    F.3d 109, 121 (2d Cir. 2007)

3        For the foregoing reasons, the petition for review is

4    DENIED.   As we have completed our review, any stay of

5    removal that the Court previously granted in this petition

6    is VACATED, and any pending motion for a stay of removal in

7    this petition is DISMISSED as moot.    Any pending request for

8    oral argument in this petition is DENIED in accordance with

9    Federal Rule of Appellate Procedure 34(a)(2), and Second

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk

13




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