Jia Xin Ou v. Holder

360 F. App'x 259

• Court: Court of Appeals for the Second Circuit
• Decided: January 13, 2010
• Docket: 09-2246-ag
• Status: Unpublished

Opinion

SUMMARY ORDER

Jia Xin Ou, a native and citizen of the People’s Republic of China, seeks review of an April 30, 2009 order of the BIA affirming the October 26, 2007 decision of Immigration Judge (“IJ”) Brigitte Laforest, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jia Xin Ou, No. A099 670 040 (B.I.A. Apr. 30, 2009), aff'g No. A099 670 040 (Immig. Ct. N.Y. City Oct. 26, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

We review the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The applicable standards of review are well-settled. See 8 U.S.C. § 1252(b)(4)(B); Manzur v. U.S. Dep’t of Homeland See., 494 F.3d 281, 289 (2d Cir.2007); see also Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).

Contrary to Ou’s argument, the IJ properly based her denial of his applications for relief on Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-12 (2d Cir.2007) (en banc), the controlling authority at the time she rendered her oral decision, rather than based on the law as it stood on the day of Ou’s April 2007 merits hearing. The IJ could not have made her decision prior to DHS’s completion of the requisite background checks. See 8 C.F.R. § 1003.47(g) (requiring all identity, law enforcement, and security investigations to be completed prior to an IJ granting an application for immigration relief). Once these background checks were complete, the IJ was bound to apply the law as it stood on the day of her decision. See Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97-98, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (finding that courts are bound “to apply a rule of federal law retroactively after the case announcing the rule has already done so” in all cases still open on direct review).

Furthermore, we find no error in the agency’s denial of relief. Lin does not contest that he was not eligible for asylum based on his wife’s forced abortion. See Shi Liang Lin, 494 F.3d at 309-12. Moreover, contrary to Ou’s assertion, the factual record in the case was “adequately developed” with respect to the issue of Ou’s “other resistance” to the Chinese family planning policy. See Shu Wen Sun v. BIA, 510 F.3d 377, 381 n. 5 (2d Cir.2007) (per curiam).

Moreover, the agency reasonably determined that even if Ou did engage in resistance to China’s family planning policy, he failed to demonstrate that he was persecuted on account of that resistance. See Shi Liang Lin, 494 F.3d at 313 (citing Matter of S-L-L, 24 I. & N. Dec. 1, 10 (B.I.A.2006)). Nothing in the record compels the conclusion that Ou’s arrest, detention, and mistreatment upon his repatriation to China were as a result of his resistance to China’s population control policy as opposed to his violation of the country’s immigration laws. See Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 239 (2d Cir.1992) (“[P]unishment for violation of a generally applicable criminal law is not persecution.”).

Because Ou’s claims for withholding of removal and CAT relief were based on the same factual predicate as his asylum claim, and the BIA reasonably found that he was unable to meet his burden for asylum, he was necessarily unable to meet the higher standard required to succeed on his claim for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t. of Justice, 426 F.3d 520, 523 (2d Cir.2005).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).