Rong Fu Wang v. United States Department of Justice , 354 F. App'x 485 ( 2009 )

09-0299-ag
Wang v. Holder
BIA
Nelson, IJ
A079 669 247
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 25 th day of November, two thousand nine.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 BARRINGTON D. PARKER,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 RONG FU WANG,
14 Petitioner,
15
16 v. 09-0299-ag
17 NAC
18 UNITED STATES DEPARTMENT OF JUSTICE,
19 ATTORNEY GENERAL ERIC H. HOLDER, JR.,
20 Respondent.
21 _______________________________________
1 FOR PETITIONER: Yee Ling Poon; Robert Duk-Hwan Kim,
2 New York, New York.
3
4 FOR RESPONDENT: Tony West, Assistant Attorney
5 General; Carl McIntyre, Assistant
6 Director; Steven F. Day, Trial
7 Attorney, Office of Immigration
8 Litigation, United States Department
9 of Justice, Civil Division,
10 Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 decision of the Board of Immigration Appeals (“BIA”), it is
14 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
15 review is DENIED.
16 Petitioner Rong Fu Wang, a native and citizen of the
17 People’s Republic of China, seeks review of a December 23,
18 2008 order of the BIA affirming the May 11, 2007 decision of
19 Immigration Judge (“IJ”) Barbara A. Nelson denying his
20 application for asylum, withholding of removal, and relief
21 under the Convention Against Torture (“CAT”). * In re Rong
22 Fu Wang, No. A079 669 247 (B.I.A. Dec. 23, 2008), aff’g No.
23 A079 669 247 (Immig. Ct. N.Y. City, May 11, 2007). We
24 assume the parties’ familiarity with the underlying facts
*
Although Wang is challenging the denial of relief in
“Asylum-Only” proceedings, as opposed to an actual removal
order, this Court nonetheless has jurisdiction under
8 U.S.C. § 1252(a)(1) because the denial of relief in these
circumstances is the functional equivalent of a removal
order. See Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir.
2006).
2
1 and procedural history in this case.
2 When, as here, the BIA does not expressly “adopt” the
3 IJ’s decision, but its brief opinion closely tracks the IJ’s
4 reasoning, the Court may consider both the IJ’s and the
5 BIA’s opinions for the sake of completeness if doing so does
6 not affect the Court’s ultimate conclusion. See Jigme
7 Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). We
8 review de novo questions of law and the application of law
9 to undisputed fact. See Bah v. Mukasey, 529 F.3d 99, 110
10 (2d Cir. 2008). We review the agency’s factual findings
11 under the substantial evidence standard. 8 U.S.C.
12 § 1252(b)(4)(B); see Dong Gao v. BIA, 482 F.3d 122, 126 (2d
13 Cir. 2007).
14 To the extent that Wang continues to assert that he may
15 be eligible for relief based on his fiancée’s forced
16 abortion, this Court has squarely rejected the notion that
17 aliens are per se eligible for relief based on the forced
18 sterilization of their partner. Shi Liang Lin v. U.S. Dep’t
19 of Justice, 494 F.3d 296, 309 (2d Cir. 2007).
20 Nonetheless, an applicant may still establish his
21 eligibility for relief by showing either past persecution or
22 a well-founded fear of future persecution on account of his
23 own “resistance” to China’s family planning policy. 8 U.S.C.
3
1 § 1101(a)(42); see Shi Liang Lin, 494 F.3d at 313. Wang
2 argues that he suffered past persecution in the form of an
3 “onerous fine.” Although Wang correctly asserts that
4 economic deprivation may constitute persecution, see
5 Mirzoyan v. Gonzales, 457 F.3d 217 (2d Cir. 2006); In re
6 T-Z-, 24 I. & N. Dec. 163, 172-73 (BIA 2007) , the record
7 evidence in this case does not indicate how the fine
8 impacted him or his family. See Guan Shan Liao v. U.S.
9 Dep’t. of Justice, 293 F.3d 61, 70 (2d Cir. 2002) (finding
10 no economic persecution where petitioner did not present any
11 testimony or other evidence of his income in China, his net
12 worth at the time of the fines, or any other facts that
13 would make it possible to evaluate his personal financial
14 circumstances in relation to the fines imposed by the
15 government). In the absence of such evidence we cannot
16 conclude that the agency erred in finding that Wang failed
17 to establish past persecution.
18 Wang also argues that he established a well-founded
19 fear of future persecution based on his statement that
20 Chinese officials threatened him with “some charges.” Wang,
21 however, failed to detail how the vague threat of “some
22 charges” establishes that he reasonably fears persecution
23 upon return to China. See Jian Xing Huang v. INS, 421 F.3d
41 125, 129 (2d Cir. 2005) (holding that, absent “solid
2 support” in the record for the petitioner’s assertion that
3 he would be persecuted, his fear was “speculative at best”).
4 Accordingly, we find no clear error in the agency’s
5 denial of Wang’s application for asylum where he failed to
6 establish either past persecution or a well-founded fear of
7 future persecution. See 8 U.S.C. § 1101(a)(42). Because
8 Wang was unable to show the objective likelihood of
9 persecution needed to make out an asylum claim, he was
10 necessarily unable to meet the higher standard required to
11 succeed on his claim for withholding of removal because both
12 claims were based upon the same factual predicate. See Paul
13 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Wang does
14 not challenge the agency’s denial of his request for CAT
15 relief.
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any pending motion
18 for a stay of removal in this petition is DISMISSED as moot.
19 Any pending request for oral argument in this petition is
20 DENIED in accordance with Federal Rule of Appellate
21 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
25
26 By____________________________
5