09-3392-ag
Ou v. Holder
                                                                                BIA
                                                                          Abrams, IJ
                                                                        A094 901 355
                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.


     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 16 th day of April, two thousand ten.

PRESENT:
         DENNIS JACOBS,
              Chief Judge,
         JON O. NEWMAN,
         GERARD E. LYNCH,
            Circuit Judges.
____________________________________
JIA SHENG OU,
         Petitioner,

               v.                                                  09-3392-ag
                                                                          NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
____________________________________

FOR PETITIONER:                Jed S. Wasserman, Kuzmin & Associates,
                               New York, New York.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Blair O’Connor, Assistant Director;
                               Rachel   Browning,   Trial   Attorney,
                               Office   of  Immigration   Litigation,
                               United States Department of Justice,
                               Washington, D.C.
     UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.

     Jia Sheng Ou, a native and citizen of the People’s
Republic of China, seeks review of a July 16, 2009, order of
the BIA, affirming the November 7, 2007, decision of
Immigration Judge (“IJ”) Steven R. Abrams, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Jia Sheng
Ou, No. A094 901 355 (B.I.A. July 16, 2009), aff’g No. A094
901 355 (Immig. Ct. N.Y. City Nov. 7, 2007). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.

     Under the circumstances of this case, we review both the
IJ’s and the BIA’s opinions “for the sake of completeness.”
Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).       The
applicable standards of review are well-established.      See
Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);
Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d
Cir. 2007).

     The agency’s finding that Ou did not demonstrate past
persecution was supported by substantial evidence.        See
Salimatou Bah, 529 F.3d at 110. Even if Ou’s testimony that
a police officer attempted to take his camera while he was
documenting the destruction of his family’s property is
construed as a claim of past persecution, the BIA reasonably
found   that  this   harassment   did  not   constitute  past
persecution. See Ivanishvili v. U.S. Dep’t of Justice, 433
F.3d 332, 341 (2d Cir. 2006).      Moreover, although Ou now
claims that the confiscation of his family’s land itself was
economic deprivation that rose to the level of persecution,
because he failed to exhaust this issue before the agency, we
decline to address it in the first instance. See Lin Zhong v.
U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007).

     Because the agency did not err in finding that Ou did not
establish a claim of past persecution, he was not entitled to
a   presumption   of   future   persecution.   See  8   C.F.R.
§§ 208.13(b)(1); 1208.16(b)(1). The agency reasonably found
that Ou did not meet his burden of showing a well-founded fear
of persecution, because he did not provide sufficient evidence
to show that the Chinese authorities sought his – as distinct
from his father’s – arrest. See 8 U.S.C. § 1158(b)(1)(B)(ii).
Indeed, the only documentation Ou provided to show that he was
sought by the Chinese authorities consisted of certifications

                             -2-
issued by his village committee. The agency did not err in
according little weight to this documentation, because it was
not issued by the county – the municipal body responsible for
the arrest of Ou’s father – and the source of the village
committee’s information was unclear. See Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).

     The agency also reasonably noted that Ou was able to
leave the country using his own passport, undermining his
claim that he was sought by the Chinese authorities. Although
Ou suggests that the smuggling network was able to circumvent
the Chinese government’s passport control mechanisms, his
argument would not necessarily compel a reasonable fact-finder
to find that Ou was being sought.

     Lastly, the agency relied in part on an inconsistency
between Ou’s testimony and his credible fear interview. Ou
argues that he was not asked to explain this discrepancy at
the merits hearing, and that his credible fear interview
should   be  given   limited  probative   value  pursuant   to
Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir. 2004).
However, even if this portion of the agency’s reasoning was
gratuitous or in error, remand is not required because the
rest of the agency’s non-erroneous findings adequately support
its denial. See Xiao Ji Chen, 471 F.3d at 339; Xiao Kui Lin
v. Mukasey, 553 F.3d 217, 224 (2d Cir. 2009).

     Because Ou’s CAT claim is based on the same set of facts
as his asylum and withholding claims, the agency’s finding
that he had not met his burden of proof was a sufficient basis
to deny his claim for asylum, withholding, and CAT relief.
See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue
Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.
2006).

     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




                             -3-
