09 -48 23 -ag

Ni v. Holder BIA Chew, IJ A095 144 293 

### UNITED STATES COURT OF AP PEALS FOR THE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY O RDER 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 20 day of July, two thousand ten. th 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 GERARD E. LYNCH, 9 DENNY CHIN, 10 C ircuit Judges . 11

_______________________________________ 12 13 WEN QUN NI, 14 Petitioner , 15 16 v. 09-4823-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL 20 Respondent . 21

______________________________________ 22 23 FOR PETITIONER: Jed S. Wasserman, Kuzmin & 24 Associates, New York, New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General, Civil Division; Jennifer L. 28 Lightbody, Senior Litigation 29 Counsel; Edward E. Wiggers, Trial 30 Attorney, Office of Immigration 31 Litigation, Civil Division, United 32 States Department of Justice, 33 Washington, D.C.2 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Wen Qun Ni, a native and citizen of the 6 People’s Republic of China, seeks review of an October 21, 7 2009, order of the BIA affirming the January 17, 2008, 8 decision of Immigration Judge (“IJ”) George T. Chew denying 9 Ni’s application for asylum, withholding of removal, and 1 0 relief under the Convention Against Torture (“CAT”). In re 11 Wen Qun Ni , No. A095 144 293 (B.I.A. Oct. 21, 2009), aff’g 1 2 No. A 95 144 293 (Immig. Ct. N.Y. City Jan. 17, 2008). We 1 3 assume the parties’ familiarity with the underlying facts 1 4 and procedural history in this case. 1 5 Under the circumstances of this case, we review the 1 6 IJ’s decision as supplemented by the BIA’s decision. See 17 Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005) . 1 8 Ni argues that he suffered past persecution because he 1 9 incurred a fine as a result of his violation of the family 2 0 planning policy. He claims “[i]t was difficult for him to 2 1 pay off the fine,” and he says he had to “borrow[] money 2 2 from ‘everywhere.’” However, he produced no evidence of his3 1 income in China, his net worth at the time of the fines, or 2 any other facts that would make it possible to evaluate his 3 personal financial circumstances in relation to the fines 4 imposed by the government. “Absent this sort of proof, we 5 cannot assess whether or not the fines constituted a 6 substantial disadvantage to him.” Guan Shan Liao v. United 7 States Dep’t of Justice , 293 F.3d 61, 70 (2d Cir. 2002). 8 Moreover, to the extent that Ni argues that his expulsion 9 from vocational school constituted economic persecution, as 1 0 the BIA noted, Ni did not demonstrate that “he has no 1 1 alternative means of obtaining an education or gainful 1 2 employment.” Because Ni bears the burden of proof and he 1 3 does not point to anything in the record contradicting these 1 4 findings, we find no error in the agency’s conclusion that 1 5 Ni failed to establish past persecution. See 8 C.F.R. 1 6 § 1208.13(a). 1 7 Because the agency’s decision was supported by 1 8 substantial evidence, inasmuch as Ni’s claim for withholding 1 9 of removal and CAT relief share the same factual predicate 2 0 as his claim for asylum, the agency’s finding is fatal to 2 1 those claims as well. See Paul v. Gonzales , 444 F.3d 148, 2 2 156 (2d Cir. 2006). To the extent Ni argues he is eligible4 1 for CAT relief based on his illegal departure from China, we 2 decline to address the argument as it was not exhausted 3 before the agency. See Lin Zhong v. U.S. Dep’t of Justice , 4 480 F.3d 104, 119-20 (2d Cir. 2007).

For the foregoing reasons, the petition for review is 5 6 DENIED. As we have completed our review, any stay of 7 removal that the Court previously granted in this petition 8 is VACATED, and any pending motion for a stay of removal in 9 this petition is DISMISSED as moot. 1 0 FOR THE COURT: 1 1 Catherine O’Hagan Wolfe, Clerk 12 13