Jian Guang Shao v. Holder , 458 F. App'x 67 ( 2012 )

10-3674-ag
Shao v. Holder
BIA
Nelson, IJ
A099 592 237
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 6th day of February, two thousand twelve.
PRESENT:
PETER W. HALL,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
______________________________________
JIAN GUANG SHAO,
Petitioner,
v. 10-3674-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Jan Potemkin, New York, New York
FOR RESPONDENT: Tony West, Assistant Attorney
General; Anthony C. Payne, Senior
Litigation Counsel; Ali Manuchehry,
Trial 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 DISMISSED in part, and DENIED in part.
Jian Guang Shao, a native and citizen of China, seeks
review of a December 28, 2009, order of the BIA affirming
the March 4, 2008, decision of Immigration Judge (“IJ”)
Barbara A. Nelson, which denied Shao’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Jian Guang Shao,
No. A099 592 237 (B.I.A. Dec. 28, 2009), aff’g No. A099 592
237 (Immig. Ct. N.Y. City Mar. 4, 2008). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
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) (per curiam). 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).
Shao argues that the agency erred in concluding that he
failed to demonstrate that he timely filed his asylum
application, pointing out that the BIA did not explain why
an airline ticket showing that he traveled inside China in
March 2005 was insufficient to prove that his January 2006
asylum application was filed within one year of his arrival
in the United States. This argument does not raise a
question of law but rather takes issue with the agency’s
evaluation of Shao’s evidence. See Gui Yin Liu v. INS, 508
F.3d 716, 720 (2d Cir. 2007) (per curiam). We lack
jurisdiction to address this argument regarding the agency’s
pretermission of his asylum claim. We thus dismiss this
portion of the petition. See 8 U.S.C. §§ 1158(a)(2)(B),
1252(a)(2)(D); Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d at 315, 329 (2d Cir. 2006). We note that even if the
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agency’s pretermission of asylum was in error, remand would
not be appropriate because the agency’s alternative
disposition of Shao’s petition, as discussed below, is
supported by substantial evidence. See Xiao Ji Chen, 471
F.3d at 339.
Shao does not challenge the agency’s determination that
he did not suffer past persecution or its conclusion that he
was not entitled to a presumption that he has a well-founded
fear of future persecution. See Baba v. Holder, 569 F.3d
79, 86 (2d Cir. 2009) (noting that “a showing of past
persecution shifts the burden to the government on the
question of the petitioner’s well-founded fear of future
persecution”). Instead, Shao contends that he demonstrated
a well-founded fear of persecution on account of his
resistance to the family planning policy, arguing that the
authorities might believe that he “assisted his wife in
having the [intrauterine device she was mandated to use
under the family planning policy] removed,” or that his
“efforts to hide his wife” during her pregnancy constituted
resistance. Even if these acts were considered “other
resistance” to the family planning policy, thereby providing
a nexus to a protected ground, see Shi Liang Lin v. U.S.
Dep’t of Justice, 494 F.3d at 309-10 (2d Cir. 2007), having
found that Shao did not demonstrate past persecution, the
agency reasonably determined that he did not meet his burden
to establish a well-founded fear of persecution, because
there is no evidence to indicate that he was sought by the
Chinese authorities. See Jian Xing Huang v. INS, 421 F.3d
125, 128-29 (2d Cir. 2005).
Finally, the agency did not err in denying Shao
withholding of removal and CAT relief, to the extent these
claims were predicated on the same facts as his asylum
claim.* See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
104, 115 (2d Cir. 2007) (recognizing that withholding of
removal and CAT relief require “a greater quantum of proof”
than asylum).
For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part. As we have completed
*
As the Government points out, Shao does not raise any
argument before us regarding his illegal departure claim.
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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 DENIED 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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