Xiang Xiang Wang v. Holder , 455 F. App'x 44 ( 2012 )

10-1426-ag (L)
Wang v. Holder
BIA
Videla, IJ
A099 025 437
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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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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 9th day of January, two thousand twelve.
PRESENT:
ROGER J. MINER,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.
_______________________________________
XIANG XIANG WANG,
Petitioner,
10-1426-ag (L);
-v.- 10-4013-ag (Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Richard Tarzia, Law Office of
Richard Tarzia, Belle Mead, N.J.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Terri J. Scadron, Assistant
Director; Micheline Hershey,
Attorney, Office of Immigration
Litigation, U.S. Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of
two Board of Immigration Appeals (“BIA”) decisions, it is
hereby ORDERED, ADJUDGED, AND DECREED that the petitions for
review are DENIED.
Petitioner Xiang Xiang Wang, a native and citizen of
the People’s Republic of China, seeks review of both the
March 23, 2010, decision of the BIA affirming the June 3,
2008, decision of Immigration Judge (“IJ”) Gabriel C.
Videla, denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”), In re Xiang Xiang Wang, No. A099 025 437 (B.I.A.
Mar. 23, 2010), aff’g No. A099 025 437 (Immigr. Ct. N.Y.
City June 3, 2008), and the September 7, 2010, decision of
the BIA denying his motion to reopen, In re Xiang Xiang
Wang, No. 099 025 437 (B.I.A. Sept. 7, 2010).1 We assume
the parties’ familiarity with the underlying facts and
procedural history.
I. Merits - Docket Number 10-1426-ag (L)
With respect to the agency’s denial of Wang’s initial
application, we review both the IJ’s and the BIA’s opinions
1
Wang does not challenge the agency’s denial of CAT
relief.
2
“for the sake of completeness.” Zaman v. Mukasey, 514 F.3d
233, 237 (2d Cir. 2008) (per curiam)(internal quotation
marks omitted). The applicable standards of review are
well-established.
See 8 U.S.C. § 1252(b)(4)(B)(2006); Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
In finding that Wang failed to establish his
eligibility for asylum, the agency properly found that
Wang’s claim based on his wife’s forced sterilization was
foreclosed by Shi Liang Lin v. U.S. Dep’t of Justice, 494
F.3d 296, 309 (2d Cir. 2007)(en banc). Indeed, in Shi Liang
Lin, we squarely rejected the notion that an alien is per se
eligible for relief based on a spouse’s forced abortion.
See id. (holding that “an individual does not automatically
qualify for ‘refugee’ status on account of a coercive
procedure performed on someone else”).
Moreover, as to Wang’s other allegation of past
persecution--his altercation with family planning officials-
-substantial evidence supports the agency’s determination
that Wang did not testify credibly because he omitted this
allegation from his asylum application.
See 8 U.S.C. § 1158(b)(1)(B)(iii)(2006) (stating that the
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agency may rely on any inconsistency or omission in making
an adverse credibility determination as long as the
“totality of the circumstances” establishes that an asylum
applicant is not credible, without regard to whether those
inconsistencies go to the heart of the applicant’s claim);
Xiu Xia Lin v. Mukasey, 534 F.3d 162,163,167 (2d Cir.
2008)(per curiam); Matter of J-Y-C-, 24 I. & N. Dec. 260,
265 (B.I.A. 2007).
Here, as the agency found, while Wang testified that he
tried to prevent family planning officials from entering his
home by “pulling them and drag[ging] them,” his written
application indicated only that he “disagreed” with his
wife’s forced sterilization, and that Chinese family
planning officials took him to a government office where he
was detained briefly and ordered to pay a fine, and made no
mention of any physical struggle or any other attempt to
resist efforts to sterilize his wife. See Xiu Xia Lin, 534
F.3d at 166 (stating that for the purposes of analyzing a
credibility determination, “[a]n inconsistency and an
omission are ... functionally equivalent”). A reasonable
fact finder would not be compelled to credit Wang’s
explanation for this omission. See Majidi v. Gonzales, 430
F.3d 77, 80-81 (2d Cir. 2005).
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Moreover, as the agency reasonably found, even if Wang
testified credibly regarding his altercation with family
planning officials, and even if this altercation might be
characterized as “other resistance,” see Shi Liang Lin, 494
F.3d at 313, Wang nevertheless failed to establish that he
suffered harm rising to the level of persecution on account
of that resistance. Indeed, because the only harm Wang
claimed to have suffered was a brief detention and damage to
some of his furniture, the agency reasonably found that the
harm Wang alleged did not rise to the level of persecution.
See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341
(2d Cir. 2006). Given Wang’s failure to establish past
persecution or to provide any alternative basis for his fear
of future persecution, the agency did not err in finding
that he failed to demonstrate a well-founded fear of
persecution, particularly in light of the fact that,
following his wife’s forced sterilization, he remained in
China for two years without any further harm. See
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004);
Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).
Furthermore, despite Wang’s assertion that he
established a well-founded fear of persecution based on his
illegal departure from China, the agency reasonably found
5
that the possibility that he will be prosecuted under a
generally applicable statute does not, by itself,
demonstrate that he has a well-founded fear of persecution
on account of a protected ground. See Qun Yang v. McElroy,
277 F.3d 158, 163 n.5 (2d Cir. 2002).
Accordingly, the agency reasonably denied Wang’s
application for asylum. Because he failed to meet his
burden of demonstrating eligibility for asylum, Wang
necessarily failed to meet the higher burden for withholding
of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
Cir. 2006).
II. Motion to Reopen - Docket Number 10-4013-ag (Con)
We have reviewed the BIA’s denial of Wang’s motion to
reopen for abuse of discretion, see Kaur v. BIA, 413 F.3d
232, 233 (2d Cir. 2005) (per curiam), and conclude that
there has been no abuse of discretion, as the BIA provided
rational explanations for its decision. See Ke Zhen Zhao v.
U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001).
Specifically, as the BIA noted, Wang failed to submit a new
asylum applicationwith his motion to reopen, as required by
the regulations. See 8 C.F.R. § 1003.2(c)(1) (“A motion to
reopen proceedings for the purpose of submitting an
6
application for relief must be accompanied by the
appropriate application for relief.”).
Additionally, the BIA reasonably determined that Wang
failed to demonstrate his prima facie eligibility for relief
based on his practice of Falun Gong in the United States.
See INS v. Abudu, 485 U.S. 94, 104 (1988) (recognizing that
a movant’s failure to establish a prima facie case for the
underlying substantive relief sought is a proper ground on
which the BIA may deny a motion to reopen). As the BIA
found, Wang failed to demonstrate an objectively reasonable
fear that he would be persecuted due to his practice of
Falun Gong, as he did not present any evidence that Chinese
officials were aware or would become aware of his practice
of Falun Gong. See Hongsheng Leng v. Mukasey, 528 F.3d 135,
143 (2d Cir. 2008)(per curiam). Furthermore, contrary to
Wang’s argument that the BIA abused its discretion by
failing to consider adequately the evidence in the record,
the BIA explicitly referenced Wang’s evidence in its
decision, and its acknowledgment was sufficient. See Jian
Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008)
(noting that the BIA does not need to parse expressly or
refute every piece of evidence submitted by the petitioner);
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337
n.17 (2d Cir. 2006)(same).
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For the foregoing reasons, the petitions for review are
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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