         08-2062-ag
         Jiang v. Mukasey
                                                                                       BIA
                                                                                  Morace, IJ
                                                                                A95 710 258
                             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 3 rd day of February, two thousand ten.
 5
 6       PRESENT:
 7                 ROSEMARY S. POOLER,
 8                 RICHARD C. WESLEY,
 9                 DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11       _______________________________________
12
13       WEN XIU JIANG,
14                Petitioner,
15
16                          v.                                  08-2062-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., 1 UNITED STATES
19       ATTORNEY GENERAL,
20
21                Respondent.
22       ______________________________________
23
24


                      1
                        Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Attorney General Michael
             B. Mukasey as a respondent in this case.
   1   FOR PETITIONER:        Farah Loftus, Century City,
   2                          California.
   3
   4   FOR RESPONDENT:        Gregory G. Katsas, Assistant
   5                          Attorney General, Ernesto H. Molina,
   6                          Jr., Assistant Director, Anthony P.
   7                          Nicastro, Senior Litigation Counsel,
   8                          Office of Immigration Litigation,
   9                          Civil Division, United States
  10                          Department of Justice, Washington,
  11                          D.C.
  12
  13       UPON DUE CONSIDERATION of this petition for review of a

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

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

  16   is DENIED, in part, and DISMISSED, in part.

17         Petitioner Wen Xiu Jiang, a native and citizen of

18     China, seeks review of an April 1, 2008 order from the BIA

19     affirming the June 5, 2006 decision of Immigration Judge

20     (“IJ”) Philip L. Morace denying his applications for asylum,

21     withholding of removal, and relief under the Convention

22     Against Torture (“CAT”).   In re Wen Xiu Jiang, No. A 95 710

23     258 (B.I.A. Apr. 1, 2008), aff’g No. A 95 710 258 (Immig.

24     Ct. N.Y. City June 5, 2006).   We assume the parties’

25     familiarity with the underlying facts and procedural history

26     in this case.

27         When the BIA adopts the decision of the IJ and

28     supplements the IJ’s decision, this Court reviews the


                                      2
 1   decision of the IJ as supplemented by the BIA.     See Yan Chen

 2   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     This Court

 3   reviews the agency’s factual findings under the substantial

 4   evidence standard, treating them as “conclusive unless any

 5   reasonable adjudicator would be compelled to conclude to the

 6   contrary.”     8 U.S.C. § 1252(b)(4)(B); see also Manzur v.

 7   U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.

 8   2007).

 9          The agency properly found that Jiang failed to

10   demonstrate that he suffered past persecution.     In   Shi

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

12   2007) (en banc), this Court determined that under 8 U.S.C.

13   § 1101(a)(42) an individual is not per se eligible for

14   asylum based on the forced abortion or sterilization of a

15   spouse or partner because “applicants can become candidates

16   for asylum relief only based on persecution that they

17   themselves have suffered or must suffer.”     See 494 F.3d at

18   308.     The Court held that such individuals must seek relief

19   under the two remaining categories of 8 U.S.C. §

20   1101(a)(42), providing protection to applicants who

21   demonstrate persecution based on their “other resistance to

22   a coercive population control program” or “a well founded

23   fear that [they] will be . . . subject to persecution for

                                     3
 1   such . . . resistance . . . .”        Id. at 309-10 (quoting 8

 2   U.S.C. § 1101(a)(42)).

 3       In his brief before this Court, Jiang argues for the

 4   first time that he is “resistant” to China’s family planning

 5   policy.       Even if we were to consider Jiang’s resistance

 6   argument, 2 it fails where he did not point to any part of

 7   the record demonstrating that he resisted China’s family

 8   planning policies.       See Matter of S-L-L, 24 I.& N. Dec. 1,

 9   10 (B.I.A. 2006).

10       The agency also properly found that Jiang failed to

11   establish that he has a well-founded fear of future

12   persecution on the basis of his newly adopted practice of

13   Falun Gong.       To establish asylum eligibility based on future

14   persecution, an applicant must show that he or she

15   subjectively fears persecution and that this fear is

16   objectively reasonable.       Ramsameachire v. Ashcroft, 357 F.3d

17   169, 178 (2d Cir. 2004). A fear is not objectively

18   reasonable if it lacks “solid support” in the record and is

19   merely “speculative at best.” Jian Xing Huang v. INS, 421




               2
            We need not decide whether Jiang’s other resistance
       argument is an unexhausted issue as discussed in Lin
       Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d
       Cir. 2007), because the argument is plainly without
       merit.

                                       4
 1   F.3d 125, 129 (2d Cir. 2005).

 2       The agency found that Jiang’s fear of persecution on

 3   account of being a Falun Gong practitioner was too

 4   speculative to merit relief.     In his brief before this

 5   Court, Jiang asserts that he is entitled to relief because

 6   he is a devoted Falun Gong practitioner and, if he returns

 7   to China, he would be restricted from practicing Falun Gong

 8   and possibly detained by authorities because of China’s

 9   pattern and practice of persecuting Falun Gong

10   practitioners.     Even assuming the existence of such a

11   pattern and practice, Jiang fails to meaningfully argue that

12   Chinese authorities are likely to become aware of his

13   practice of Falun Gong.     To demonstrate a well-founded fear

14   of persecution, “an applicant must establish that his [or

15   her] putative persecutor is, or could become, aware of the

16   applicant’s possession of the disfavored belief or

17   characteristic.”     Hongsheng Leng v. Mukasey, 528 F.3d 135,

18   142 (2d Cir. 2008) (internal quotations omitted).     Here,

19   Jiang testified that he did not practice Falun Gong in China

20   and that if he returned to China he would practice Falun

21   Gong only at home.     The only evidence he points to is the

22   background material, and while that evidence indicates that

23   the Chinese government suppresses the practice of Falun


                                     5
 1   Gong, it does not sufficiently demonstrate how the

 2   government would become aware of his participation.       Thus,

 3   “[i]n the absence of solid support for [Jiang]’s assertion

 4   that he will be subjected to [persecution], his fear is

 5   speculative at best,” Huang, 421 F.3d at 129, and we find no

 6   reason to disturb the agency’s conclusion.

 7       Because Jiang did not challenge in his brief to the BIA

 8   the agency’s denial of his withholding of removal and CAT

 9   claims, this Court does not have jurisdiction to address

10   such a challenge in the first instance.    See 8 U.S.C.

11   § 1252(d)(1).   We dismiss the petition for review to that

12   extent.

13       For the foregoing reasons, the petition for review is

14   DENIED, in part, and DISMISSED, in part.     As we have

15   completed our review, the pending motion for a stay of

16   removal in this petition is DISMISSED as moot.
17
18                               FOR THE COURT:
19                               Catherine O’Hagan Wolfe, Clerk
20
21
22




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