09-4823-ag

Ni v. Holder

BIA

Chew, IJ

A095 144 293

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 20 day of July, two thousand ten. th

5

6 PRESENT:

7 DEBRA ANN LIVINGSTON,

8 GERARD E. LYNCH,

9 DENNY CHIN,

10 Circuit 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

10 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

12 No. A 95 144 293 (Immig. Ct. N.Y. City Jan. 17, 2008). We

13 assume the parties’ familiarity with the underlying facts

14 and procedural history in this case.

15 Under the circumstances of this case, we review the

16 IJ’s decision as supplemented by the BIA’s decision. See

17 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

18 Ni argues that he suffered past persecution because he

19 incurred a fine as a result of his violation of the family

20 planning policy. He claims “[i]t was difficult for him to

21 pay off the fine,” and he says he had to “borrow[] money

22 from ‘everywhere.’” However, he produced no evidence of his
3

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

10 the BIA noted, Ni did not demonstrate that “he has no

11 alternative means of obtaining an education or gainful

12 employment.” Because Ni bears the burden of proof and he

13 does not point to anything in the record contradicting these

14 findings, we find no error in the agency’s conclusion that

15 Ni failed to establish past persecution. See 8 C.F.R.

16 § 1208.13(a). 

17 Because the agency’s decision was supported by

18 substantial evidence, inasmuch as Ni’s claim for withholding

19 of removal and CAT relief share the same factual predicate

20 as his claim for asylum, the agency’s finding is fatal to

21 those claims as well. See Paul v. Gonzales, 444 F.3d 148,

22 156 (2d Cir. 2006). To the extent Ni argues he is eligible
4

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). 

5 For the foregoing reasons, the petition for review is

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.

10 FOR THE COURT: 

11 Catherine O’Hagan Wolfe, Clerk

12

13