         10-1368-ag
         Jiang v. Holder
                                                                                       BIA
                                                                               Van Wyke, IJ
                                                                               A098 278 920
                                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 21st day of July, two thousand eleven.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                RICHARD C. WESLEY,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _______________________________________
12
13       XIAN MING JIANG,
14                Petitioner,
15
16                         v.                                   10-1368-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Dehai Zhang, Flushing, New York.
24       FOR RESPONDENT:                 Tony West, Assistant Attorney
25                                       General; Emily Anne Radford,
26                                       Assistant Director; Sarah L. Vuong,
27                                       Trial Attorney, Office of
28                                       Immigration Litigation, Civil
29                                       Division, United States Department
30                                       of Justice, 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       Petitioner Xian Ming Jiang, a native and citizen of the

 6   People’s Republic of China, seeks review of a March 31,

 7   2010, order of the BIA reversing the July 16, 2008, decision

 8   of Immigration Judge (“IJ”) William Van Wyke, granting his

 9   application for asylum.     In re Xian Ming Jiang, No. A098 278

10   920 (B.I.A. Mar. 31, 2010), rev’g No. A098 278 920 (Immig.

11   Ct. N.Y.C. July 16, 2008).     We assume the parties’

12   familiarity with the underlying facts and procedural history

13   of the case.

14       Under the circumstances of this case, we have reviewed

15   only the BIA’s decision.     See Yan Chen v. Gonzales, 417 F.3d

16   268, 271 (2d Cir. 2005).     The applicable standards of review

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

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

19       As an initial matter, the BIA’s application of Shi

20   Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d

21   Cir. 2007), and Matter of J-S-, 24 I.&.N. Dec. 520, 529

22   (Att’y Gen. 2008), did not violate Jiang’s due process

                                     2
 1   rights.    See Shou Wei Jin v. Holder, 572 F.3d 392, 397 (7th

 2   Cir. 2009); Yu v. U.S. Att’y. Gen., 568 F.3d 1328, 1334

 3   (11th Cir. 2009).     Indeed, the BIA appropriately applied the

 4   law in effect at the time it entered its decision.     See

 5   8 C.F.R. § 1003.1(d)(3)(ii); see also NLRB v. Coca-Cola

 6   Bottling Co., 55 F.3d 74, 78 (2d Cir. 1995) (“Appellate

 7   courts ordinarily apply the law in effect at the time of the

 8   appellate decision”).     Moreover, Jiang had the opportunity

 9   to present his claim anew after the issuance of Shi Liang

10   Lin.    See Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.

11   2007) (finding that “to establish a violation of due

12   process, an alien must show ‘that she was denied a full and

13   fair opportunity to present her claims’”) (citation

14   omitted)).

15          The BIA reasonably concluded that Jiang failed to

16   demonstrate past persecution or a well-founded fear of

17   future persecution.     Although Jiang claimed that he suffered

18   past persecution, he did not allege that he was physically

19   harmed or mistreated by family planning officials.     See

20   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

21   Cir. 2006) (holding that to constitute persecution, the harm

22   must be sufficiently severe, rising above “mere


                                     3
 1   harassment”).    Furthermore, the BIA properly held that Jiang

 2   was not per se eligible for the relief he sought based on

 3   his wife’s forced abortion.    See Shi Liang Lin, 494 F.3d at

 4   308; see also Gui Yin Liu v. INS, 508 F.3d 716, 723 (2d Cir.

 5   2007).   Moreover, Jiang failed to present any evidence

 6   demonstrating that he suffered a substantial economic

 7   disadvantage based on the imposition of fines for his

 8   violation of the family planning policy.    See Guan Shan Liao

 9   v. U.S. Dep’t of Justice, 293 F.3d 61, 69-70 (2d Cir. 2002);

10   see also Matter of T-Z-, 24 I. & N. Dec. 163, 171-175

11   (B.I.A. 2007).

12       Substantial evidence also supports the BIA’s

13   determination that Jiang failed to establish a well-founded

14   fear of persecution because he had two children.    See Jian

15   Hui Shao v. Mukasey, 546 F.3d 138, 158-68 (2d Cir. 2008);

16   see also Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d

17   Cir. 2004) (holding that absent past persecution, an alien

18   can demonstrate eligibility for asylum based on a well-

19   founded fear of future persecution by demonstrating that he

20   or she subjectively fears persecution and that this fear is

21   objectively reasonable).   In Jian Hui Shao, we reviewed the

22   BIA’s consideration of the same or similar evidence as that


                                    4
 1   submitted by Jiang, including official documents from Fujian

 2   Province relating to the family planning regulations, State

 3   Department reports, and newspaper articles, and we found no

 4   error in the BIA’s conclusion that such evidence was

 5   insufficient to establish an objectively reasonable fear of

 6   persecution.   546 F.3d at 169-72 (noting that “[w]e do not

 7   ourselves attempt to resolve conflicts in record evidence, a

 8   task largely within the discretion of the agency”).

 9   Moreover, the evidence Jiang submitted, including the

10   translations of Chinese law and policies relating to family

11   planning, did not establish that his claimed fear of forced

12   sterilization was objectively reasonable because it merely

13   referenced the family planning policy’s mandatory

14   sterilization requirement and did not indicate that

15   sterilizations are performed by force.      Additionally, as the

16   BIA noted, the notice Jiang’s wife received from the Birth

17   Control Office did not state that either he or his wife

18   would be forcibly sterilized.       See Jian Xing Huang v. INS,

19   421 F.3d 125, 129 (2d Cir. 2005) (holding that, absent solid

20   support in the record for the petitioner’s assertion that he

21   would be subjected to persecution, his fear was “speculative

22   at best”).



                                     5
 1       Lastly, the BIA properly conducted de novo review in

 2   answering the question of whether Jiang met his burden of

 3   proof in establishing that he had a reasonable fear of

 4   sterilization if he returned to China.   As the underlying

 5   facts in the record were not in dispute, the BIA had the

 6   authority to address “questions of law” regarding Jiang’s

 7   eligibility for relief.   See 8 C.F.R. § 1003.1(d)(3)(i) and

 8   (ii), see also Jian Hui Shao, 546 F.3d at 162 (concluding

 9   that the BIA did not erroneously conduct de novo review of

10   the IJ’s factual findings by making “a legal determination

11   that, while [petitioner’s] credible testimony was sufficient

12   to demonstrate a genuine subjective fear of future

13   persecution, more was needed to demonstrate the objective

14   reasonableness of that fear”); Kambolli v. Gonzales, 449

15   F.3d 454, 457 (2d Cir. 2006) (evaluating de novo the

16   agency’s “legal conclusion” that a petitioner did not

17   demonstrate a well-founded fear of persecution based on

18   “facts established in the record”).

19       Accordingly, because the BIA’s determination that Jiang

20   failed to show past persecution or a well-founded fear of

21   future persecution is supported by substantial evidence,

22   8 U.S.C. § 1252(b)(4)(B); see Corovic v. Mukasey, 519 F.3d


                                   6
 1   90, 95 (2d Cir. 2008), the BIA did not err in denying his

 2   asylum application.

 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
14




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