Maijin Zhu v. Holder ( 2011 )

10-2705-ag
Zhu v. Holder
BIA
Rohan, IJ
A097 335 850
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.
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 15th day of April, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 MAIJIN ZHU,
14 Petitioner,
15
16 v. 10-2705-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Jan Potemkin, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Mary Jane Candaux,
27 Assistant Director; Michael C.
28 Heyse, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Maijin Zhu, a native and citizen of China, seeks review
6 of a June 9, 2010, order of the BIA affirming the November
7 18, 2008, decision of Immigration Judge (“IJ”) Patricia A.
8 Rohan, which denied his application for asylum and
9 withholding of removal. In re Maijin Zhu, No. A097 335 850
10 (B.I.A. June 9, 2010), aff’g No. A097 335 850 (Immig. Ct.
11 N.Y. City Nov. 18, 2008). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 in this case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as the final agency decision. See Mei
16 Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.
17 2007). The applicable standards of review are well-
18 established. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110
19 (2d Cir. 2008); Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d
20 Cir. 2007).
21 Because Zhu is not per se eligible for asylum based on
22 his girlfriend’s forced abortion, he was required to show
23 “other resistance to a coercive population control program,”
2
1 and that he was persecuted as a result. Shi Liang Lin v.
2 U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir. 2007).
3 The BIA has defined persecution as a “threat to the life or
4 freedom of, or the infliction of suffering or harm upon,
5 those who differ in a way regarded as offensive.” Matter of
6 Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985), overruled, in
7 part, on other grounds, INS v. Cardoza-Fonseca, 480 U.S. 421
8 (1987). The harm must be sufficiently severe, rising above
9 “mere harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433
10 F.3d 332, 341 (2d Cir. 2006).
11 Here, the IJ reasonably found that the harm Zhu
12 suffered was insufficiently severe to constitute
13 persecution. Zhu was denied permission to marry on two
14 occasions because he was underage, family planning officials
15 intruded upon and stopped his traditional wedding, and they
16 threatened to arrest him after he argued with them, forcing
17 him to flee. Because Zhu returned to his home that same
18 evening, and had no further issues with the authorities in
19 the three months before he left China, the agency reasonably
20 concluded that Zhu did not suffer past persecution. See id.
21 Because the agency reasonably concluded that Zhu did
22 not suffer past persecution, he was not entitled to a
3
1 presumption of future persecution. See 8 C.F.R.
2 § 208.13(b)(1). As the only specific allegation Zhu made
3 regarding future persecution was that the family planning
4 officials threatened to arrest him for any future violation
5 of the policy, the agency reasonably concluded that Zhu did
6 not meet his burden of establishing a well-founded fear of
7 future persecution. See Jian Xing Huang v. INS, 421 F.3d
8 125, 129 (2d Cir. 2005) (concluding that a fear is not
9 objectively reasonable if it lacks “solid support” in the
10 record and is merely “speculative at best”). Because Zhu
11 did not demonstrate past persecution, or a well-founded fear
12 of future persecution, the agency did not err in denying his
13 application for asylum. See 8 C.F.R. § 208.13(b). Moreover,
14 because Zhu did not establish a well-founded fear of
15 persecution, he was necessarily unable to meet the higher
16 standard required to succeed on a claim for withholding of
17 removal. See 8 C.F.R. § 1208.16(b); Paul v. Gonzales, 444
18 F.3d 148, 156 (2d Cir. 2006); Gomez v. INS, 947 F.2d 660,
19 665 (2d Cir. 1991).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
5