         10-622-ag
         Pan v. Holder
                                                                                      BIA
                                                                                  Hom, IJ
                                                                             A088 377 874
                          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
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16th day of March, two thousand eleven.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                RICHARD C. WESLEY,
 9                PETER W. HALL,
10                      Circuit Judges.
11       ______________________________________
12
13       QIAO YUN PAN,
14                Petitioner,
15
16                       v.                                     10-622-ag
17                                                              NAC
18       ERIC H. HOLDER, JR.,
19       UNITED STATES ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               James Costo, Law Office of James
24                                     Costo, Brooklyn, New York.
25
26       FOR RESPONDENT:               Loretta E. Lynch, United States
27                                     Attorney; Varuni Nelson, Scott Dunn,
28                                     Margaret M. Kolbe, Assistant United
29                                     States Attorneys; Dione M. Enea,
30                                     Special Assistant United States
31                                     Attorney, Of Counsel; Eastern
32                                     District of New York, Brooklyn, New
33                                     York.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

 3   ORDERED, ADJUDGED, AND DECREED, that the petition for review

 4   is DENIED in part and DISMISSED in part.

 5       Qiao Yun Pan, a native and citizen of the People’s

 6   Republic of China, seeks review of a January 26, 2010, order

 7   of the BIA affirming the April 22, 2008, decision of

 8   Immigration Judge (“IJ”) Sandy K. Hom, pretermitting her

 9   application for asylum and denying her applications for

10   withholding of removal and relief under the Convention

11   Against Torture (“CAT”).   In re Qiao Yun Pan, No. A088 377

12   874 (B.I.A. Jan. 26, 2010), aff’g No. A088 377 874 (Immig.

13   Ct. N.Y. City Apr. 22, 2008).       We assume the parties’

14   familiarity with the underlying facts and procedural history

15   in this case.

16       Under the circumstances of this case, we review the

17   decision of the IJ as supplemented by the BIA.       See Yan Chen

18   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005)       The

19   applicable standards of review are well-established.         See

20   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

21   510, 513 (2d Cir. 2009).

22



                                     2
 1   I.   Asylum

 2        Title 8, Section 1158(a)(3) of the United States Code

 3   provides that no court shall have jurisdiction to review the

 4   agency’s finding that an asylum application was untimely

 5   under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither

 6   changed nor extraordinary circumstances excusing the

 7   untimeliness under 8 U.S.C. § 1158(a)(2)(D).     While the

 8   courts retain jurisdiction, under 8 U.S.C. § 1252(a)(2)(D),

 9   to review constitutional claims and “questions of law,” Pan

10   has challenged only the agency’s factual determination that

11   she failed to demonstrate extraordinary circumstances.

12   Accordingly, we dismiss Pan’s petition for review to the

13   extent it challenges the agency’s pretermission of her

14   asylum application.   See Xiao Ji Chen v. U.S. Dep’t of

15   Justice, 471 F.3d 315, 329-331 (2d Cir. 2006).

16   II. Withholding of Removal and CAT Relief

17        The agency reasonably determined that Pan did not

18   suffer past persecution based on her membership in an

19   underground Roman Catholic church in China given that the

20   only harm she suffered was loss of her job and instruction

21   to register with an authorized church.   See Ivanishvili v.

22   U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)

23   (stating that the harm must rise above “mere harassment”);

                                   3
 1   accord Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61,

 2   67 (2d Cir. 2002); Matter of T-Z-, 24 I.&.N. Dec. 163, 172-

 3   73 (BIA 2007) (economic harm must be “severe,” such that it

 4   would “constitute a threat to an individual’s life or

 5   freedom”).   The record also supports the BIA’s determination

 6   that Pan failed to demonstrate an objective fear of future

 7   persecution, as the evidence showed that although China has

 8   engaged in discrimination and abuse against Christians, Pan

 9   failed to establish that the restrictions were severe enough

10   to constitute a likelihood a persecution.   See Siewe v.

11   Gonzales, 480 F.3d 160, 167 (2d Cir. 2007); Xiao Ji Chen v.

12   U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).

13       Substantial evidence also supports the agency’s

14   determination that Pan failed to establish a clear

15   probability of future persecution based on the birth of her

16   two children.   We have previously reviewed the BIA’s

17   consideration of the State Department reports and family

18   planning regulations submitted in this case and have found

19   no error in its conclusion that such evidence was

20   insufficient to establish an objectively reasonable fear of

21   persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138,

22   169-72 (2d Cir. 2008) (“[U]nattributed ‘reports’ of forced

23   sterilization that lack[] any specificity as to number or

24   circumstance . . . d[o] not, by themselves, persuasively

                                   4
 1   demonstrate a reasonable possibility that [an applicant]

 2   would face such persecution.”).

 3       Because Pan was unable to establish the objective

 4   likelihood of persecution needed to make out a withholding

 5   of removal claim based on either her religion or the births

 6   of her two children, she was necessarily unable to establish

 7   a likelihood of torture.   See Paul v. Gonzales, 444 F.3d

 8   148, 155-56 (2d Cir. 2006).   To the extent Pan asserts that

 9   she will be tortured as a “returning illegal emigrant,” she

10   has pointed to no specific evidence that similarly situated

11   individuals are tortured when returned to China.   But see

12   Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.

13   2003) (holding that the relevant inquiry is whether someone

14   in the applicant’s particular circumstances would be

15   persecuted upon return to China because of an illegal

16   departure).

17       For the foregoing reasons, the petition for review is

18   DENIED in part and DISMISSED in part.   As we have completed

19   our review, any stay of removal that the Court previously

20   granted in this petition is VACATED, and any pending motion

21   for a stay of removal in this petition is DISMISSED as moot.

22

23

24


                                   5
1   Any pending request for oral argument in this petition is

2   DENIED in accordance with Federal Rule of Appellate

3   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6




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