WEI v. HOLDER, 07-5413-ag (2nd Cir. 3-23-2009)

QING MEI WEI, Petitioner, v. ERIC H. HOLDER, JR.,[*] Respondent.

No. 07-5413-ag.United States Court of Appeals, Second Circuit.
March 23, 2009.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

[*] Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr. is automatically substituted as the respondent in this case.

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.

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FOR PETITIONER: Law Office of Fengling Liu, New York,N.Y.
FOR RESPONDENT: Timothy Bo Stanton, (Joanne E. Johnson,Office of Immigration Litigation, Gregory G. Katsas, AssistantAttorney General, Stephen J. Flynn, Senior LitigationCounsel, on the brief), United StatesDepartment of Justice, Washington, D.C.

PRESENT: HON. DENNIS JACOBS, ChiefJudge, HON. RICHARD C. WESLEY, CircuitJudge, HON. LEONARD B. SAND, DistrictJudge.[**]

[**] The Honorable Leonard B. Sand, United States District Court for the Southern District of New York, sitting by designation.

Petitioner Qing Mei Wei, a native and citizen of the People’s Republic of China, seeks review of a November 14, 2007 order of the BIA affirming the October 13, 2005 decision of Immigration Judge (“IJ”) Sandy Hom denying Wei’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Qing Mei Wei, No. A 98 740 522 (B.I.A. Nov. 14, 2007), aff’g No. A 98 740 522 (Immig. Ct. N.Y. City Oct. 13, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

When the BIA affirms the IJ’s decision in all respects but one and supplements the IJ’s decision, this Court

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reviews the IJ’s decision as modified and supplemented by the BIA’s decision. See Xue Hong Yang v. U.S.Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005);Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Accordingly, although Wei challenges the IJ’s adverse credibility determination, we decline to address that basis for the IJ’s denial of relief because the BIA specifically declined to do so. See Xue Hong Yang, 426 F.3d at 522. This Court reviews the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);see also Manzur v. U.S. Dep’t of HomelandSec., 494 F.3d 281, 289 (2d Cir. 2007). We review denovo questions of law and the application of law to undisputed fact. Passi v. Mukasey, 535 F.3d 98, 101
(2d Cir. 2008).

Wei concedes that she failed to establish past persecution, but argues that she established a well-founded fear of persecution based at least in part on imputed political opinion.See Chun Gao v. Gonzales, 424 F.3d 122, 129
(2d Cir. 2005).

However, the record supports the BIA’s finding that Wei did not establish a well-founded fear of persecution. SeeJian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005) (holding that, absent solid support in the record for the

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petitioner’s assertion that he would be persecuted, his fear was “speculative at best”). The police did not harm or mistreat Wei in any manner. Indeed, Wei never claimed that the police even threatened her. Although she says that her parents report police visits to her family’s home searching for her, none of the record evidence establishes when or how often those visits occurred, or what the authorities did or said during those visits.[1]

While the country report mentions that individuals involved with Falun Gong may be subject to some discipline no matter their level of involvement, it does indicate that an individual’s level of participation affects the treatment that an individual might receive. Because Wei’s participation was limited and took place years ago, and because Wei does not now practice Falun Gong, we cannot find that the agency’s denial of her asylum application was in

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error.

Because Wei was unable to show the objective likelihood of persecution needed to make out an asylum claim, she was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. SeePaul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

Finally, Wei has failed to sufficiently challenge the agency’s denial of CAT relief and does not raise before this Court any claim based on her illegal departure from China. Thus, we deem any such arguments waived. See Yueqing Zhang v.Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot.

[1] The IJ based the denial of relief in part on Wei’s testimony that her parents and siblings remain in China without harm. Wei argues that this was error because no record evidence indicates that her parents or siblings were involved with Falun Gong to any extent. Cf. Poradisova v.Gonzales, 420 F.3d 70, 80-81 (2d Cir. 2005). She has a point, but remand would not be required even if this were deemed error because, based on the error-free findings we have identified, we can confidently predict that the agency would again reach the same determination. See Xiao JiChen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-39 (2d Cir. 2006).

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