XIAOYI XIA, Chang Yang, Petitioners, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent, 387 F. App'x 68

SUMMARY ORDER Petitioners Xiaoyi Xia and Chang Yang, natives and citizens of the People’s Republic of China, seek review of the June 15, 2009, order of the BIA affirming the October 3, 2007, decision of Immigration Judge (“IJ”) Javier E. Balasquide pretermitting their applications for asylum and denying their applications for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Xiaoyi Xia and Chang Yang, Nos. [ AXXX XXX XXX ], [ AXXX XXX XXX ] (B.I.A. June 15, 2009), affg Nos. [ AXXX XXX XXX ], [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Oct. 3, 2007).

We assume the parties’ familiarity with the underlying facts and procedural history in this case. Under the circumstances of this case, we review both the IJ’s and BIA’s decisions. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). Because petitioners do not challenge the agency’s pretermission of their asylum applications, we consider only their eligibility for withholding of removal and CAT relief.

With respect to petitioners’ claim under the family planning policy, we have previously reviewed the agency’s consideration of evidence similar to that which they submitted and have found no error in its conclusion that such evidence is insufficient to establish an alien’s prima facie eligibility for relief. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 164-72 (2d Cir.2008); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006). We have also held that petitioners cannot establish a well-founded fear of persecution under the family planning policy based on the birth of only one child.

See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (a fear is not objectively reasonable if it lacks “solid support” in the record and is merely “speculative at best”). With respect to petitioners’ illegal departure claim, the BIA did not err in finding that they failed to establish that any punishment imposed on them for fleeing from China would rise to the level of persecution. See Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 239 (2d Cir.1992) (holding that “punishment for violation of a generally applicable criminal law is not persecution”).

The BIA reasonably rejected petitioners’ claim that they would be persecuted on account of their membership in a particular social group comprised of “repatriated citizens who had illegally entered the U.S.,” or “Chinese citizens who have brought shame to the People’s Republic of China by violating another [country’s] border laws,” holding that any punishment would be imposed due to their illegal departure rather than their membership in those purported groups.

See 8 U.S.C. § 1158(b)(1)(B) (stating that an asylum applicant’s status as a member of a particular social group-and not some other factor-must be a central reason why that individual is targeted for persecution.) The BIA also did not err in finding that petitioners failed to submit any particularized evidence indicating that they would be singled out for torture based on their illegal departure. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005); Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.2003).

Contrary to petitioners’ assertion, the BIA properly held that, absent some evidence of a specific intent to inflict torture, a likelihood of imprisonment, standing alone, was insufficient to establish their eligibility for CAT relief. See Pierre v. Gonzales, 502 F.3d 109, 121 (2d Cir.2007) 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 34.1(b).