10-1357-ag
Han v. US DOJ
                                                                                BIA
                                                                          Abrams, IJ
                                                                        A088 372 173

                     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 23rd day of August, two thousand eleven.
PRESENT:
         JOHN M. WALKER, JR.,
         PETER W. HALL,
         DENNY CHIN,
              Circuit Judges.
_______________________________________

YINGHUA HAN,
         Petitioner,

                v.                                      10-1357-ag
                                                        NAC
UNITED STATES DEPARTMENT OF JUSTICE,
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondents.
_______________________________________

FOR PETITIONER:                Dehai Zhang, Flushing, New York.

FOR RESPONDENTS:               Tony West, Assistant Attorney General;
                               Douglas E. Ginsburg, Assistant Direc-
                               tor; Paul Fiorino, Senior Litigation
                               Counsel, Office of Immigration Litiga-
                               tion, Civil Division, U.S. Department
                               of Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED in part and DISMISSED in part.

    Petitioner Yinghua Han, a native and citizen of the

People’s Republic of China, seeks review of a March 17, 2010,

order of the BIA affirming the August 14, 2008, decision of

Immigration Judge (“IJ”) Steven R. Abrams, pretermitting her

asylum application as untimely and denying her application for

withholding of removal and relief under the Convention Against

Torture (“CAT”).   In re Yinghua Han, No. A088 372 173 (B.I.A.

Mar. 17, 2010), aff’g No. A088 372 173 (Immig. Ct. N.Y. City

Aug. 14, 2008).    We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

    Under the circumstances of this case, we review both the

IJ’s and the BIA’s opinions.    See Zaman v. Mukasey, 514 F.3d

233, 237 (2d Cir. 2008).    The applicable standards of review

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

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




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I.   Pretermission of Asylum

     Contrary to Han’s arguments, the agency did not commit

legal error in its pretermission of her asylum application as

untimely. There is no merit to Han’s argument that the agency

failed to apply a legal standard, as Han was required to

demonstrate “to the satisfaction of the Attorney General” that

extraordinary circumstances excused her untimely filing.      8

U.S.C. § 1158(a)(2)(D).   Furthermore, the agency considered

Han’s argument that she feared “revenge” if she applied for

asylum, and it was not required to explicitly address the

evidence of her son’s illness.     See Jian Hui Shao v. Mukasey,

546 F.3d 138, 169 (2d Cir. 2008) (rejecting the notion that

the agency must “expressly parse or refute on the record each

individual argument or piece of evidence offered by the

petitioner” (quoting Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87

(2d Cir. 2007)).

     Furthermore, Han’s arguments that the record demonstrates

that she established exceptional circumstances sufficient to

excuse her untimely filing, raise neither a constitutional

claim nor a question of law.     See Xiao Ji Chen v. U.S. Dep’t

of Justice, 471 F.3d 315, 329-31 (2d Cir. 2006). Accordingly,

we lack jurisdiction to review these arguments.     See 8 U.S.C.

§ 1252(a)(2)(D).

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II. Withholding of Removal and CAT Relief

    The agency reasonably concluded that Han failed to meet

her burden of demonstrating past persecution based on her

claim that she was physically forced to have an abortion. Han

testified that family planning officials came to her home and

“dragged” her to the hospital, but in response to the IJ’s

request for clarification of why she omitted that detail from

her asylum application, Han testified that she decided to have

an abortion to avoid a fine and to prevent her husband from

losing his job. Han also testified that her husband was angry

with her for having an abortion.   Moreover, as the BIA found,

although Han submitted an abortion certificate in support of

her claim, a State Department report indicated that abortion

certificates are issued to recipients of voluntary abortions.

Accordingly, the agency reasonably determined that there was

insufficient evidence that the abortion resulted from physical

force.

    Furthermore, the agency reasonably found that Han failed

to establish that the threat of economic harm for refusing the

abortion amounted to force.   The BIA found that Han presented

no evidence indicating “the amount she would be fined, the

income they would lose if her husband was fired, or their



                               4
assets in China for the [IJ] to assess in determining whether

the threatened harm would be persecutory . . . .”   Because Han

did not present evidence regarding her personal financial

circumstances in relation to the threatened economic harm, it

was reasonable for the BIA to conclude that she did not

demonstrate economic persecution. See Jian Hui Shao, 546 F.3d

at 161-61; Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d

61, 70 (2d Cir. 2002).    Accordingly, a reasonable fact-finder

would not be compelled to find that Han met her burden of

establishing that she was forced to have an abortion, as

required to establish past persecution based on an abortion.

See 8 U.S.C. § 1101(a)(42). We thus affirm the BIA’s finding.

See Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000).

    Additionally, the agency did not err in finding that Han

failed to meet her burden of demonstrating a well-founded fear

of future persecution.    To the extent Han claims that she has

a well-founded fear of persecution because she might have more

children, she failed to point to any particular evidence in

the record to support her claim that her fear of future

persecution was objectively reasonable.    See Jian Xing Huang

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

solid support in the record for the petitioner’s assertion

that he would be subjected to persecution, his fear was

“speculative at best”).

                                5
     Accordingly, substantial evidence supports the agency’s

determination that Han failed to establish past persecution or

a well-founded fear of future persecution.            The agency thus

did not err in denying withholding of removal.               8 U.S.C.

§ 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.

2008).    Because   Han   was   unable    to   show    the   objective

likelihood of persecution needed to make out a claim for

withholding of removal based on her alleged forced abortion,

she was necessarily unable to succeed on her claim for CAT

relief, which rested on the same factual predicate.           See Paul

v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

     For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part.          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 DENIED 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




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