Shifeng Yang v. Holder , 397 F. App'x 719 ( 2010 )

09-4911-ag
Yang v. Holder
BIA
Elstein, IJ
A098 718 421
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 26th day of October, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
RALPH K. WINTER,
Circuit Judges.
______________________________________
SHIFENG YANG,
Petitioner,
v. 09-4911-ag
NAC
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: G. Victoria Calle, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
James E. Grimes, Senior Litigation
Counsel; Kerry A. Monaco, Attorney,
Office of Immigration Litigation;
United States Department of Justice,
Washington, D.C.
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.
Shifeng Yang, a native and citizen of the People’s
Republic of China, seeks review of an October 30, 2009,
decision of the BIA affirming the January 28, 2008, decision
of Immigration Judge (“IJ”) Annette S. Elstein, which denied
Yang’s application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Shifeng Yang, No. A098 718 421 (BIA Oct. 30, 2009), aff’g No.
A098 718 421 (Immig. Ct. N.Y. City Jan. 28, 2008). 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 the BIA’s opinions “for the sake of completeness.”
Zaman v. Mukasey, 514 F.3d 233, 237(2d Cir. 2008). The
applicable standards of review are well-established. See 8
U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d
90, 95 (2d Cir. 2008); Bah v. Mukasey, 529 F.3d 99, 110 (2d
Cir. 2008).
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The agency did not err in finding that, even if credible,
Yang did not meet his burden of proof to establish his
eligibility for asylum. The agency reasonably found that
unfulfilled threats, which were the only individualized harm
Yang alleged he had suffered, did not rise to the level of
persecution. See Ci Pan v. United States Atty General, 449
F.3d 408, 412-13 (2d Cir. 2006). This is so, even when
considered in conjunction with his father’s alleged beating,
because, as the IJ noted, Yang did not allege that this
incident resulted in any injuries to his father or caused Yang
any continuing harm. See Shi Liang Lin v. U.S. Dep’t of
Justice, 494 F.3d 296, 308 (2d Cir. 2007) (“the statutory
scheme unambiguously dictates that applicants can become
candidates for asylum relief only based on persecution that
they themselves have suffered or must suffer”); see also Tao
Jiang v. Gonzales, 500 F.3d 137, 141-42 (2d Cir. 2007)
(recognizing that the “harm suffered by family members in
combination with other factors . . . would presumably only be
[persecution] where . . . the applicant not only shares (or is
perceived to share) the characteristic that motivated
persecutors to harm the family members, but was also within
the zone of risk when the family member was harmed, and
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suffered some continuing hardship after the incident.”).
Therefore, the agency did not err in finding that Yang failed
to demonstrate that he suffered past persecution and we need
not review the agency’s alternative determination that the
harm he claimed to have suffered was not on account of a
protected ground. See 8 C.F.R. § 1208.13(b)(1); see also
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d
Cir. 2006).
In addition, by not briefing the claim in this Court,
Yang forfeited any challenge to the agency’s determination
that he failed to demonstrate a well-founded fear of future
persecution. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
n.1, 545 n.7 (2d Cir. 2005). Accordingly, we find no error in
the agency’s denial of Yang’s application for asylum. See 8
C.F.R. § 1208.13(b)(1). Moreover, the agency did not err in
denying his application for withholding of removal based on
denial of his application for asylum because those claims were
based on the same factual predicate. See Paul v. Gonzales,
444 F.3d 148, 155-56 (2d Cir. 2006).
Finally, Yang waives any challenge to the agency’s denial
of his application for CAT relief based on his illegal
departure claim. See Yueqing Zhang, 426 F.3d 540 at 541 n.1,
545 n.7
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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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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