Zhang Fang Wang v. Holder , 440 F. App'x 12 ( 2011 )

10-3170-ag
Wang v. Holder
BIA
Weisel, IJ
A088 376 198
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 7th day of October, two thousand eleven.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_______________________________________
ZHANG FANG WANG,
Petitioner,
v. 10-3170-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Jed S. Wasserman, Kuzmin & Associates,
P.C., New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Michelle Gorden Latour, Assistant
Director; Kimberly A. Burdge, Attor-
ney, Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Zhang Fang Wang, a native and citizen of the People’s
Republic of China, seeks review of a July 9, 2010, decision of
the BIA affirming the September 23, 2008, decision of
immigration judge (“IJ”) Robert D. Weisel, denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Zhang
Fang Wang, No. A088 376 198 (B.I.A. July 9, 2010), aff’g No.
A088 376 198 (Immig. Ct. N.Y. City Sept. 23, 2008). We assume
the parties’ familiarity with the underlying facts and
procedural history of this case.
Under the circumstances of this case, we have reviewed
both the BIA’s and IJ’s opinions. Zaman v. Mukasey, 514 F.3d
233, 237 (2d Cir. 2008). The applicable standards of review
are well established. 8 U.S.C. § 1252(b)(4)(B); Aliyev v.
Mukasey, 549 F.3d 111, 115 (2d Cir. 2008).
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I. Family Planning Claim
Substantial evidence supports the agency’s determination
that Wang failed to establish his eligibility for relief based
on his claim of resistance to China’s family planning policy.
As Wang acknowledges, the agency correctly concluded that he
was not eligible for asylum solely on the basis of his wife’s
forced abortion. See Shi Liang Lin v. U.S. Dep’t of Justice,
494 F.3d 296, 309-310 (2d Cir. 2007). Nevertheless, even
though Wang was not per se eligible for asylum based on his
wife’s forced abortion, he could still qualify for relief by
demonstrating that: (1) he engaged in “other resistance” to
the family planning policy; and (2) he suffered harm rising to
the level of persecution or has a well-founded fear of
suffering such harm as a direct result of his resistance. See
id. at 313; 8 U.S.C. § 1101(a)(42); Matter of J-S-, 24 I. & N.
Dec. 520, 523 (A.G. 2008).
In this case, the agency did not err in finding that Wang
failed to demonstrate that he resisted the family planning
policy because impregnating his wife, on its own, does not
constitute other resistance, see Shi Liang Lin, 494 F.3d at
313 (citation omitted), and family planning officials were not
aware of any of the other purported acts of resistance
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asserted by Wang. Moreover, even assuming that Wang engaged
in resistance to China’s family planning policy, the agency
reasonably determined that he did not establish that he
suffered harm rising to the level of persecution on account of
that resistance because he did not allege that he personally
suffered any emotional or economic harm arising from the
unfortunate incidents involving family planning officials.
See Shi Liang Lin, 494 F.3d at 309 (stating that “an
individual whose spouse undergoes . . . a forced abortion or
involuntary sterilization may suffer a profound emotional
loss,” but providing that “an individual does not
automatically qualify for ‘refugee’ status on account of a
coercive procedure performed on someone else” (emphasis
added)); see also Guan Shan Liao v. U.S. Dep’t. of Justice,
293 F.3d 61, 70 (2d Cir. 2002) (finding that the agency
reasonably concluded that the petitioner failed to demonstrate
economic persecution when he did not present any testimony or
other evidence of his income in China, his net worth at the
time of the fines, or any other facts that would make it
possible to evaluate his personal financial circumstances in
relation to the fines imposed by the government for violating
family planning policies); Mei Fun Wong v. Holder, 633 F.3d
64, 72 (2d Cir. 2011) (emphasizing “that persecution is an
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extreme concept that does not include every sort of treatment
our society regards as offensive” (internal quotation marks
and citations omitted)). Thus, the agency did not err in
finding that Wang failed to establish his eligibility for
relief based on his claim of past persecution. See 8 U.S.C.
§ 1101(a)(42); 8 C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1).
Wang does not challenge the agency’s determination that,
independent of his past persecution claim, he failed to
demonstrate a well-founded fear of persecution under the
family planning policy. Accordingly, that determination
stands as a valid basis for denying his application for relief
insofar as it was based on Wang’s family planning claims. See
8 C.F.R. § 1208.13(b)(2); see also Paul v. Gonzales, 444 F.3d
148, 156 (2d Cir. 2006).
II. Illegal Departure Claim
Contrary to Wang’s contention, he did not establish his
eligibility for withholding of removal or CAT relief based on
his illegal departure. “[T]he possibility that the applicant
may be subjected to criminal prosecution and perhaps severe
punishment as a result of his illegal departure from [his home
country] does not demonstrate a likelihood of persecution
under the Act.” Matter of Sibrun, 18 I. & N. Dec. 354, 359
(BIA 1983); see also Saleh v. U.S. Dep't of Justice, 962 F.2d
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234, 239 (2d Cir. 1992) (“Punishment for violation of a
generally applicable criminal law is not persecution.”).
Additionally, a petitioner is not “entitled to CAT protection
based solely on the fact that []he is part of the large class
of persons who have illegally departed China.” Mu Xiang Lin
v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir. 2005)
(emphasis in original).
In his brief, Wang does not cite any record evidence
demonstrating either that authorities would be motivated to
arrest or punish him based on his illegal departure for any
reason other than law enforcement or that individuals
similarly situated to him have suffered torture upon removal
to China. Moreover, the 2007 U.S. Department of State report
in the record, “China: Profile of Asylum Claims and Country
Conditions,” provides that:
The Chinese Government accepts the repatriation of
citizens who have entered other countries or
territories illegally. In the past several years,
hundreds of Chinese illegal immigrants have been
returned from the United States, and U.S. Embassy
officials have been in contact with scores of them. In
most cases, returnees are detained long enough once
reaching China for relatives to arrange their travel
home. Fines are rare. U.S. officials in China have
not confirmed any cases of abuse of persons returned to
China from the United States for illegal entry.
Accordingly, the record does not compel the conclusion that
Wang established either a likelihood of persecution on account
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of a protected ground or a likelihood of torture. See Saleh,
962 F.2d at 239; see also Mu Xiang Lin, 432 F.3d at 160.
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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