10-842-ag BIA

 Yang v. Holder Schoppert, IJ 

 A094 813 695

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

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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 9th day of November, two thousand eleven.

PRESENT:

JON O. NEWMAN,

ROBERT A. KATZMANN,

GERARD E. LYNCH,

 Circuit Judges.

_________________________________________

ZHU QING YANG,

Petitioner, 

 v. 10-842-ag (L) 

10-3588-ag (Con)

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_________________________________________

FOR PETITIONER: Richard Tarzia, Belle Mead, New

Jersey.

. 

FOR RESPONDENT: Tony West, Assistant Attorney

General; John S. Hogan, Senior

Litigation Counsel; David H.

Wetmore, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of

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

ORDERED, ADJUDGED, AND DECREED, that the petitions for

review are DENIED.

Petitioner Zhu Qing Yang, a native and citizen of the

People’s Republic of China, seeks review of a decision of

the BIA reversing the decision of Immigration Judge (“IJ”)

Douglas B. Schoppert and denying her application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”). In re Zhu Qing Yang, No. A094 813

695 (BIA Feb. 17, 2010), rev’g No. A094 813 695 (Immig. Ct.

N.Y. City Mar. 11, 2008). Yang additionally seeks review of

the BIA’s denial of her motion to reopen. In re Zhu Qing

Yang, No. A094 813 695 (BIA Aug. 23, 2010). We assume the

parties’ familiarity with the underlying facts and

procedural history of the case. We review the agency's

factual findings under the substantial evidence standard,

and questions of law de novo. See Aliyev v. Mukasey, 549

F.3d 111, 115 (2d Cir. 2008).

I. Family Planning Claim

To establish eligibility for asylum, an applicant must

establish past persecution or a well-founded fear of future

persecution. Ramsameachire v. Ashcroft, 357 F.3d 169, 178

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(2d Cir. 2004). The BIA has defined persecution as a

“threat to the life or freedom of, or the infliction of

suffering or harm upon, those who differ in a way regarded

as offensive.” Matter of Acosta, 19 I. & N. Dec. 211, 222

(BIA 1985), overruled, in part, on other grounds, INS v.

Cardoza-Fonseca, 480 U.S. 421, 423 (1987); accord

Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d

Cir. 2006). Economic harm may constitute persecution;

however, “an applicant for asylum must demonstrate a severe

economic disadvantage.” Matter of T-Z-, 24 I. & N. Dec.

163, 173 (BIA 2007) (internal quotation marks omitted). 

Indeed, “[t]he economic difficulties must be above and

beyond those generally shared by others in the country of

origin and involve noticeably more than mere loss of social

advantages or physical comforts.” Id.; see also Guan Shan

Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 67 (2d Cir.

2002) (holding that an asylum applicant must show at least a

“deliberate imposition of a substantial economic

disadvantage” in order for the harm to constitute economic

persecution). 

Contrary to Yang’s assertion, the BIA did not engage in

improper de novo review in concluding that she had failed to

establish a well-founded fear of future persecution for

violating China’s family planning policy. The BIA

“review[s] questions of law, discretion, and judgment and

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all other issues in appeals from decisions of immigration

judges de novo.” 8 C.F.R. § 1003.1(d)(3)(ii). The BIA may

also take administrative notice of official documents not

considered by the IJ. Id. § 1003.1(d)(3)(iv). Accordingly,

the BIA did not err in recognizing that the United States

Profile of Asylum Claims and Country Conditions for China

indicated that United States citizens, such as Yang’s

children, may travel to China on United States passports,

and their parents need not register them as permanent

residents in China, thus avoiding any fines or penalties

associated with violation of the family planning policy. 

The BIA also reasonably concluded that, even accepting,

arguendo, the IJ’s findings that Yang would be deemed in

violation of the policy and assessed a sizeable fine, those

facts did not show as a matter of law that Yang would suffer

severe economic harm. As the BIA noted, evidence in the

record indicated that the severity of any fine would be

significantly mitigated by Yang’s ability to pay it in

installments. See 8 C.F.R. § 1003.1(d)(3)(ii) (“The Board

may review questions of law . . . de novo”). Accordingly,

the BIA did not err in concluding that Yang failed to show a

well-founded fear of economic persecution. Furthermore,

although Yang continues to maintain, contrary to the IJ’s

finding, that she risks sterilization upon her return to

China, the record does not compel that conclusion. 

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II. Motion to Reopen

The BIA did not abuse its discretion in denying Yang’s

motion to reopen based on her failure to establish prima

facie eligibility for relief. See INS v. Abudu, 485 U.S.

94, 104 (1988) (holding that the BIA may deny a motion to

reopen on the ground that the movant has not established

prima facie eligibility for the underlying relief sought);

Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (reviewing

BIA’s denial of a motion to reopen or reconsider for abuse

of discretion). 

As the BIA found, Yang failed to establish her prima

facie eligibility for asylum, because she did not submit any

evidence showing that Chinese officials were aware, or would

become aware, of her religious activities. See Hongsheng

Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (“Put

simply, to establish a well-founded fear of persecution in

the absence of any evidence of past persecution, an alien

must make some showing that authorities in his country of

nationality are either aware of his activities or likely to

become aware of his activities.”). Moreover, the country

conditions information that Yang submitted did not

compellingly demonstrate that Mormons were mistreated in

China. None of the materials mentioned Mormonism

specifically, and a U.S. State Department report included in

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the record indicated that the “treatment of unregistered

[religious] groups varied significantly from region to

region.” 

The BIA’s exercise of its discretion was proper in any

case, because Yang also failed to submit a new asylum

application with her motion to reopen, as required to do

under the regulations. See 8 C.F.R. § 1003.2(c)(1) (“A

motion to reopen proceedings for the purpose of submitting

an application for relief must be accompanied by the

appropriate application for relief and all supporting

documentation.”). 

For the foregoing reasons, the petitions for review are

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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