         09-4823-ag
         Ni v. Holder
                                                                                       BIA
                                                                                   Chew, IJ
                                                                               A095 144 293
                         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 20 th day of July, two thousand ten.
 5
 6       PRESENT:
 7                DEBRA ANN LIVINGSTON,
 8                GERARD E. LYNCH,
 9                DENNY CHIN,
10                         Circuit Judges.
11       _______________________________________
12
13       WEN QUN NI,
14                Petitioner,
15
16                      v.                                      09-4823-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Jed S. Wasserman, Kuzmin &
24                                     Associates, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General, Civil Division; Jennifer L.
28                                     Lightbody, Senior Litigation
29                                     Counsel; Edward E. Wiggers, Trial
30                                     Attorney, Office of Immigration
31                                     Litigation, Civil Division, United
32                                     States Department of Justice,
33                                     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 Wen Qun Ni, a native and citizen of the

6    People’s Republic of China, seeks review of an October 21,

7    2009, order of the BIA affirming the January 17, 2008,

8    decision of Immigration Judge (“IJ”) George T. Chew denying

9    Ni’s application for asylum, withholding of removal, and

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

11   Wen Qun Ni, No. A095 144 293 (B.I.A. Oct. 21, 2009), aff’g

12   No. A 95 144 293 (Immig. Ct. N.Y. City Jan. 17, 2008).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we   review the

16   IJ’s decision as supplemented by the BIA’s decision.     See

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

18       Ni argues that he suffered past persecution because he

19   incurred a fine as a result of his violation of the family

20   planning policy.   He claims “[i]t was difficult for him to

21   pay off the fine,” and he says he had to “borrow[] money

22   from ‘everywhere.’”   However, he produced no evidence of his


                                   2
1    income in China, his net worth at the time of the fines, or

2    any other facts that would make it possible to evaluate his

3    personal financial circumstances in relation to the fines

4    imposed by the government.     “Absent this sort of proof, we

5    cannot assess whether or not the fines constituted a

6    substantial disadvantage to him.”     Guan Shan Liao v. United

7    States Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002).

8    Moreover, to the extent that Ni argues that his expulsion

9    from vocational school constituted economic persecution, as

10   the BIA noted, Ni did not demonstrate that “he has no

11   alternative means of obtaining an education or gainful

12   employment.”    Because Ni bears the burden of proof and he

13   does not point to anything in the record contradicting these

14   findings, we find no error in the agency’s conclusion that

15   Ni failed to establish past persecution.     See 8 C.F.R.

16   § 1208.13(a).

17       Because the agency’s decision was supported by

18   substantial evidence, inasmuch as Ni’s claim for withholding

19   of removal and CAT relief share the same factual predicate

20   as his claim for asylum, the agency’s finding is fatal to

21   those claims as well.     See Paul v. Gonzales, 444 F.3d 148,

22   156 (2d Cir. 2006).     To the extent Ni argues he is eligible


                                     3
1    for CAT relief based on his illegal departure from China, we

2    decline to address the argument as it was not exhausted

3    before the agency.   See Lin Zhong v. U.S. Dep’t of Justice,

4    480 F.3d 104, 119-20 (2d Cir. 2007).

5        For the foregoing reasons, the petition for review is

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

7    removal that the Court previously granted in this petition

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

9    this petition is DISMISSED as moot.

10                               FOR THE COURT:
11                               Catherine O’Hagan Wolfe, Clerk
12
13




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