         09-5104-ag
         Jiang v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A094 927 955
                            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 29 th day of December, two thousand               ten.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                PETER W. HALL,
 9                DENNY CHIN,
10                     Circuit Judges
11       _____________________________________
12
13       SAI MING JIANG, also known as HUA
14       JIANG,
15                Petitioner,
16
17                         v.                                   09-5104-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Gerald Karikari, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; John C. Cunningham, Senior
28                                     Litigation Counsel; Claire L.
29                                     Workman, Trial Attorney, Office of
1                             Immigration Litigation, United
2                             States Department of Justice,
3                             Washington, D.C.
4
5           UPON DUE CONSIDERATION of this petition for review of a

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

7    ORDERED, ADJUDGED, AND DECREED, that the petition for review

8    is DENIED.

9           Sai Ming Jiang, a native and citizen of the People’s

10   Republic of China, seeks review of a November 13, 2009,

11   order of the BIA, affirming the January 29, 2008, decision

12   of Immigration Judge (“IJ”) Barbara A. Nelson, which denied

13   his application for asylum, withholding of removal and

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

15   Sai Ming Jiang, No. A094 927 955 (B.I.A. Nov. 13, 2009),

16   aff’g No. A094 927 955 (Immig. Ct. N.Y. City Jan. 29, 2008).

17   We assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19          Under the circumstances of this case, we review the

20   IJ’s decision as modified by the BIA decision, i.e., minus

21   the arguments for denying relief that were rejected by the

22   BIA.    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

23   520, 522 (2d Cir. 2005).    The applicable standards of review

24   are well-established.    See Salimatou Bah v. Mukasey, 529


                                    2
1    F.3d 99, 110 (2d Cir. 2008); Manzur v. U.S. Dep’t of

2    Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).

3        Although the IJ concluded that Jiang’s testimony was

4    not credible, the BIA denied his claim assuming his

5    testimony was credible. We, therefore, likewise assume the

6    credibility of Jiang’s testimony.       See Yan Chen v. Gonzales,

7    417 F.3d 268, 271-72 (2d Cir. 2005).       Accordingly, we do not

8    address Jiang’s challenges to the IJ’s adverse credibility

9    finding.   See id.

10       In finding that Jiang failed to demonstrate his

11   eligibility for relief, the BIA first concluded that he had

12   not suffered past persecution.       Jiang testified that he was

13   sought by the Chinese police in connection with his

14   employment at a bookstore that, unbeknownst to him,

15   contained Falun Gong books.     Jiang admitted, however, that

16   he was not actually arrested.       Thus, the BIA reasonably

17   found that the mere fact that the police sought Jiang for

18   arrest or questioning did not rise to the level of

19   persecution.   See Ivanishvili v. U.S. Dep’t of Justice, 433

20   F.3d 332, 341 (2d Cir. 2006).

21       Because the agency reasonably determined that he had

22   not suffered past persecution, Jiang’s contention that he


                                     3
1    was entitled to a presumption of a well-founded fear of

2    persecution is without merit.       See Beskovic v. Gonzales, 467

3    F.3d 223, 227 (2d Cir. 2006); 8 C.F.R. §§ 208.13(b)(1),

4    1208.16(b)(1).   Further, the BIA reasonably determined that

5    Jiang failed to meet his burden of demonstrating that his

6    fear of persecution, based on his employment at the

7    bookstore in China or his practice of Falun Gong in the

8    United States, was objectively reasonable.       See

9    Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

10       In finding that Jiang failed to meet his burden, the

11   BIA noted that he testified that he did not know whether the

12   police had issued a warrant for his arrest.       The BIA further

13   noted that the only corroboration Jiang provided for his

14   testimony consisted of two letters, one from his father, and

15   a second from his relative, Yun Zhu Weng.       The BIA

16   reasonably found that these letters were insufficient to

17   sustain Jiang’s burden of demonstrating that his fear of

18   persecution was objectively reasonable, noting that: (1) Yun

19   Zhu Weng’s letter did not mention that the police maintained

20   an interest in Jiang’s arrest; and (2) while his father’s

21   letter stated that the police “kept on questioning about

22   [Jiang’s] whereabouts” the letter lacked detail as to when


                                     4
1    and how often this questioning occurred.    See Kyaw Zwar Tun

2    v. INS, 445 F.3d 554, 568 (2d Cir. 2006).    The BIA also

3    reasonably relied on the fact that Jiang was able to exit

4    China using his own passport, thereby undermining the

5    objective reasonableness of his fear of persecution.     See

6    Ying Li v. Bureau of Citizenship and Immigration Servs., 529

7    F.3d 79, 83 (2d Cir. 2008).

8        Finally, the BIA reasonably found that Jiang failed to

9    demonstrate a well-founded fear of persecution on account of

10   his practice of Falun Gong in the United States because he

11   failed to provide any evidence that he faced a risk of

12   future persecution based on his practice of Falun Gong, or

13   that there was a “pattern or practice” of persecution of

14   similarly situated individuals in China.    Jiang’s generic

15   assertion that “the most recent Religious Report and Human

16   Rights Report” support the objective reasonableness of his

17   fear of persecution is of no moment because these reports

18   are not included in the administrative record.    See 8 U.S.C.

19   § 1252(b)(4)(A);   Xiao Xing Ni v. Gonzales, 494 F.3d 260,

20   269-70 (2d Cir. 2007).

21       In sum, the BIA reasonably found that, even assuming

22   the credibility of Jiang’s testimony, he failed to establish


                                   5
1    either that he suffered past persecution, or that his fear

2    of persecution was objectively well-founded.    See

3    Ivanishvili, 433 F.3d at 341; Ramsameachire, 357 F.3d at

4    178.    Accordingly, the agency did not err in denying Jiang’s

5    application for asylum.    Nor did it err in denying his

6    applications for withholding of removal and CAT relief,

7    which were based on the same factual predicate but required

8    Jiang to satisfy a more stringent showing. Manzur, 494 F.3d

9    at 288.

10          For the foregoing reasons, the petition for review is

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

12   removal that the Court previously granted in this petition

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

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

15   oral argument in this petition is DENIED in accordance with

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

17   Circuit Local Rule 34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk
20
21




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