Sheng v. Gonzales, (2nd Cir. 2007)

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03-40978

S h e n g v. Gonzales

BIA

J. Opaciuch, IJ

A79 084 428

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 FILED

A F T E R JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND

F E D E R A L RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

C I T E S A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

M U S T EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)."

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P A R T Y CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

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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 6th day of June, two thousand seven.

PRESENT:

H O N . PIERRE N LEVAL,

H O N . ROBERT D. SACK,

H O N . RICHARD C. WESLEY,

C i r c u i t Judges.

Z H E N G SHENG,

Petitioner,

-v.- 03-40978-ag

NAC

A L B E R T O R. GONZALES, 1

Respondent.

Pursuant to Federal Rule of Appellate Procedure 43(c)(2),

Attorney General Alberto R. Gonzales is automatically substituted

for Attorney General John Ashcroft.

F O R PETITIONER: R o b e r t J. Adinolfi, Louis & A d i n o l f i , New York, New York.

F O R RESPONDENT: J e f f r e y A. Taylor, United States A t t o r n e y for the District of C o l u m b i a , Madelyn E. Johnson, A l e x a n d e r D. Shoaibi, Assistant U n i t e d States Attorneys, Washington, DC.

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 Zheng Sheng, a citizen of the People's R e p u b l i c of China, seeks review of a November 6, 2003 order o f the Board of Immigration Appeals ("BIA"), affirming the J u l y 1, 2002 decision of Immigration Judge ("IJ") John O p a c i u c h , denying his application for relief under Article 3 o f the Convention Against Torture ("CAT"). Zheng Sheng, No.

A 7 9 084 428 (B.I.A. Nov. 6, 2003) aff'g No. A79 084 428 ( I m m i g . Ct. N.Y. City July 1, 2002). We assume the parties' f a m i l i a r i t y with the underlying facts and procedural history o f the case.

W h e r e , as here, the BIA summarily affirms the IJ's d e c i s i o n , we review the IJ's decision directly. See, e.g., T w u m v. INS, 411 F.3d 54, 59 (2d Cir. 2005). We review the a g e n c y ' s factual findings under the substantial evidence s t a n d a r d , treating them as "conclusive unless any reasonable a d j u d i c a t o r would be compelled to conclude to the contrary." 8U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 3 8 6 F.3d 66, 73 & n.7 (2d Cir. 2004). However, we will v a c a t e and remand for new findings if the agency's reasoning o r its fact-finding process was sufficiently flawed. Cao He L i n v. U.S. Dep't of Justice, 428 F.3d 391, 406 (2d Cir. 2005).

H e r e , the IJ did not err in finding that Sheng's feared m i s t r e a t m e n t would not constitute torture, where he t e s t i f i e d in vague terms that he would suffer beatings, i m p r i s o n m e n t for one to three years, fines and unemployment.

T o r t u r e is "an extreme form of cruel and inhuman treatment," 8 C.F.R. § 1208.18(a)(2) which is "something more severe t h a n the kind of treatment that would suffice to prove persecution." Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d C i r . 2006). Here, the IJ did not err in finding that none o f the treatment Sheng asserts that he fears from the C h i n e s e government, or individuals who loaned him money, r i s e s to the level of torture. See Ai Feng Yuan v. U.S.

D e p ' t of Justice, 416 F.3d 192, 198 (2d Cir. 2005); Mu Xiang L i n v. U.S. Dep't of Justice, 432 F.3d 156, 160 (2d Cir. 2 0 0 5 ) ; Nen Ying Wang v. Ashcroft, 368 F.3d 347, 350 (2d Cir. 2004).

A l t h o u g h Sheng submitted a report from a China s p e c i f i c , non-profit human rights group purporting to d o c u m e n t instances of torture in labor camps, such b a c k g r o u n d materials lack the particularity necessary to e s t a b l i s h that it is more likely than not that Sheng would s u f f e r torture. See Mu Xiang Lin, 432 F.3d at 157-58.

A c c o r d i n g l y , substantial evidence supports the IJ's finding t h a t Sheng failed to meet his burden of proof, and it is u n n e c e s s a r y for us to reach the IJ's alternative bases for d e n y i n g Sheng's application for CAT relief.

F o r the foregoing reasons the petition for review is DENIED. The pending motion for a stay of removal is D I S M I S S E D as moot.

F O R THE COURT: C a t h e r i n e O'Hagan Wolfe, Clerk By:

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