Jiang v. Keisler, (2nd Cir. 2007)

Docket Number: 07-0563

Parts: SUM

Linked as:

Text

07-0563-ag

Jiang v. Keisler

BIA

Opaciuch, IJ

A98-287-513

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

F I L E D AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1

A N D FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

L I T I G A N T CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

O N E CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

" ( S U M M A R Y ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

T O G E T H E R WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

B Y COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

P U B L I C L Y ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

H T T P : / / W W W . C A 2 . U S C O U R T S . G O V /

O R D E R ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE D O C K E T NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED. A t a stated term of the United States Court of Appeals f o r the Second Circuit, held at the Daniel Patrick Moynihan U n i t e d States Courthouse, 500 Pearl Street, in the City of N e w York, on the 27 t h day of September, two thousand seven. PRESENT: H O N . DENNIS JACOBS, C h i e f Judge, H O N . GUIDO CALABRESI, H O N . RICHARD C. WESLEY, C i r c u i t Judges. D I A N S H U N JIANG, Petitioner, v. 07-0563-ag NAC U N I T E D STATES DEPARTMENT OF JUSTICE, A T T O R N E Y GENERAL PETER KEISLER, 1 Pursuant to Federal Rule of Appellate Procedure 4 3 ( c s u b s t i t u t e d for former Attorney General Alberto Gonzales a s the respondent in this case. Respondent.

F O R PETITIONER: D e h a i Zhang, Flushing, New York.

F O R RESPONDENT: P e t e r D. Keisler, Assistant Attorney G e n e r a l , Lisa Arnold, Senior L i t i g a t i o n Counsel, Daniel E.

G o l d m a n , Attorney, Office of I m m i g r a t i o n Litigation, U.S.

D e p a r t m e n t of Justice, Washington, D.C.

U P O N DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED, that the petition for r e v i e w is DENIED.

P e t i t i o n e r Dianshun Jiang, a native and citizen of C h i n a , seeks review of a January 29, 2007 order of the BIA a f f i r m i n g the August 12, 2005 decision of Immigration Judge ( " I J " ) Adam Opaciuch denying petitioner's application for a s y l u m , withholding of removal, and relief under the C o n v e n t i o n Against Torture ("CAT"). See In re Jiang, No.

A 9 8 - 2 8 7 - 5 1 3 (B.I.A. Jan. 29, 2007), aff'g No. A98-287-513 ( I m m i g . Ct. N.Y. City Aug. 12, 2005). We assume the p a r t i e s ' familiarity with the underlying facts and p r o c e d u r a l history of the case.

W h e n as in Jiang's case the BIA affirms the IJ's d e c i s i o n in all respects but one, this Court reviews the I J ' s decision as modified by the BIA decision, i.e., "minus t h e single argument for denying relief that was rejected by t h e BIA." Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 5 2 0 , 522 (2d Cir. 2005). This Court reviews questions of l a w and the application of law to undisputed fact de novo.

S e c a i d a - R o s a l e s v. INS, 331 F.3d 297, 307 (2d Cir. 2003).

H o w e v e r , we review factual findings under the substantial e v i d e n c e standard, treating them as "conclusive unless any r e a s o n a b l e adjudicator would be compelled to conclude to the contrary." 8U.S.C. § 1252(b)(4)(B); see Zhou Yun Zhang v. I N S , 386 F.3d 66, 73 & n.7 (2d Cir. 2004), overruled in part o n other grounds by Shi Liang Lin v. U.S. Dep't of Justice, N o s . 02-4611-ag, 02-4629-ag, 03-40837-ag, -- F.3d --, 2007 WL 2 0 3 2 0 6 6 (2d Cir. July 16, 2007).

A s a preliminary matter, Jiang has waived any claim t h a t his experience in China rose to the level of persecution. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 5 4 2 n.1, 546 n.8 (2d Cir. 2005). As such, we consider only w h e t h e r the agency erred in finding that he has no well f o u n d e d fear of persecution on account of his religion.

M o r e o v e r , because the BIA affirmed the decision of the IJ " o n burden of proof grounds," assuming his credibility, we a l s o assume Jiang's credibility. See Yan Chen v. Gonzales, 4 1 7 F.3d 268, 271-72 (2d Cir. 2005).

T h e IJ's finding that Jiang did not have a well-founded f e a r of future persecution was supported by substantial evidence. Contrary to Jiang's claims, the IJ clearly i n d i c a t e d that he considered the entire record, including t h e articles submitted by Jiang. After noting that the m a j o r i t y of the articles submitted by Jiang pertained to the C h i n e s e government's treatment of religious activists, the I J observed that Jiang "would in no way constitute a church a c t i v i s t " and that the record evidence indicates that g o v e r n m e n t treatment of religious practice "var[ies] from p l a c e to place, with greater tolerance reported in the n o r t h e a s t , [and] some other parts of China." T u r n i n g to Jiang's challenge to the IJ's finding that h e could avoid persecution by relocating within China, Jiang f a i l e d to challenge to the BIA, and thus failed to exhaust h i s challenge to, that finding. See Steevenez v. Gonzales, 4 7 6 F.3d 114, 117 (2d Cir. 2007) (finding that "[t]o p r e s e r v e an issue for judicial review, a petitioner must f i r s t raise it with specificity before the BIA"). An a l i e n ' s ability to relocate safely "constitutes a ground, in a n d of itself, on which an IJ's denial of [relief]" may be b a s e d . Id. at 117-18. For this reason alone, denial of J i a n g ' s petition for review would be appropriate.

J i a n g next argues that he is entitled to CAT relief b e c a u s e he will be "prosecuted" for his illegal departure a n d that such prosecution "should constitute persecution u n d e r the U.S. asylum law." This argument misstates his b u r d e n of proof for CAT relief, which requires Jiang to show t h a t he would more likely than not be tortured if returned t o China. See 8 C.F.R. §§ 1208.16(c), 1208.17; Khouzam v. A s h c r o f t , 361 F.3d 161, 168 (2d Cir. 2004). To the extent t h a t his argument can be construed as a request for asylum o r withholding on the basis of his illegal departure, c r i m i n a l prosecution and punishment for illegal departure do n o t constitute persecution in the absence of evidence that t h e authorities have a motive other than law enforcement for s u c h prosecution. See Matter of Sibrun, 18 I. & N. Dec.

3 5 4 , 359 (BIA 1983).

F o r the foregoing reasons, the petition for review is DENIED. Having completed our review, any stay of removal t h a t the Court previously granted in this petition is V A C A T E D , and any pending motion for a stay of removal in t h i s petition is DISMISSED as moot. Any pending request for o r a l argument in this petition is DENIED in accordance with F e d e r a l Rule of Appellate Procedure 34(a)(2), and Second C i r c u i t Local Rule 34(d)(1).

F O R THE COURT: C a t h e r i n e O'Hagan Wolfe, Clerk By: O l i v a M. George, Deputy Clerk