Zu Han Li v. Holder , 456 F. App'x 61 ( 2012 )

11-1573-ag
Li v. Holder
BIA
Bukszpan, IJ
A096 401 249
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 25th day of January, two thousand twelve.
5
6 PRESENT:
7 JOSEPH M. MCLAUGHLIN,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 ZU HAN LI, AKA DICKSON NIKKI
14 WONG,
15 Petitioner,
16
17 v. 11-1573-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Thomas Sun, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Emily Anne Radford,
28 Assistant Director; Erica B. Miles,
29 Senior Litigation Counsel, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Petitioner Zu Han Li, a native and citizen of the
6 People’s Republic of China, seeks review of a March 25,
7 2011, order of the BIA, affirming the February 27, 2009,
8 decision of Immigration Judge (“IJ”) Joanna Miller Bukszpan,
9 which denied his application for asylum, withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”). In re Li, No. A096 401 249 (B.I.A. Mar. 25, 2011),
12 aff’g No. A096 401 249 (Immig. Ct. N.Y. City Feb. 27, 2009).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008) (per curiam). The applicable standards of review are
19 well-established. See 8 U.S.C. § 1252(b)(4); Weng v.
20 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 In finding that the harm suffered by Li on account of
22 his own family planning policy violation did not rise to the
23 level of persecution, the agency reasonably relied on Li’s
2
1 failure to sufficiently demonstrate his inability to pay his
2 30,000 renminbi (“RMB”) fine. See Guan Shan Liao v. U.S.
3 Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002). Moreover,
4 although Li claims that he suffered past persecution on the
5 basis of his fiancée’s forced abortion, a Chinese national’s
6 forced sterilization does not qualify as per se persecution
7 with respect to her spouse, and thus does not alone create a
8 presumption of a well-founded fear of persecution as to that
9 spouse. See Shi Liang Lin v. U.S. Dep’t of Justice, 494
10 F.3d 296, 308-09 (2d Cir. 2007); 8 C.F.R. § 1208.13(b)(1).
11 While Li further argues that he personally suffered
12 emotional harm due to his fiancée’s forced abortion, we have
13 previously rejected this argument, noting that the “profound
14 emotional loss as a partner and potential parent . . . .
15 does not change the requirement that we must follow the
16 ‘ordinary meaning’ of the language chosen by Congress,
17 according to which an individual does not automatically
18 qualify for ‘refugee’ status on account of a coercive
19 procedure performed on someone else.” Lin, 494 F.3d at 309.
20 Accordingly, the agency did not err in finding that Li
21 failed to demonstrate past persecution on account of his own
22 family planning policy violation.
3
1 Nor did the agency err in finding that Li failed to
2 show that he resisted China’s family planning laws in
3 connection with his own family planning policy violation.
4 See id. at 309-10, 312-13. “[A]n applicant claiming
5 persecution for ‘other resistance’ must demonstrate []
6 ‘resistance’ to a coercive family planning policy, which can
7 ‘cover[ ] a wide range of circumstances, including
8 expressions of general opposition, attempts to interfere
9 with enforcement of government policy in particular cases,
10 and other overt forms of resistance to the requirements of
11 the family planning law.’” Id. at 313 (quoting In re
12 S-L-L-, 24 I. & N. Dec. 1, 10 (B.I.A. 2006)). In finding
13 that Li did not demonstrate “other resistance,” the agency
14 reasonably relied on the fact that Li’s hiding of his
15 fiancée at his parents’ house and his failure to pay the
16 30,000 RMB fine were not “‘overt forms of resistance,’ but
17 rather were attempts to avoid the strictures of China’s
18 population control policies.” In re Li, No. A096 401 249,
19 Slip Op. at 2. While Li argues that his violation of the
20 family planning policy, alone, constitutes an act of overt
21 resistance, we have consistently found such arguments to be
22 without merit. See, e.g., id. at 318 (“[T]he conception of
4
1 a child is no more an expression of political opinion than
2 birth, death, sleep, or the taking of nourishment.”).
3 Moreover, in finding that the harm suffered by Li as a
4 result of his 2001 altercation with family planning
5 officials did not rise to the level of persecution, the
6 agency reasonably relied on the fact that he was not
7 injured, detained, arrested, or served with a summons
8 following the altercation. See Ivanishvili v. U.S. Dep’t of
9 Justice, 433 F.3d 332, 342 (2d Cir. 2006). Although Li
10 alleged that police threatened to arrest him following the
11 2001 incident, we have previously “rejected [persecution]
12 claims involving ‘unfulfilled threats.’” Gui Ci Pan v. U.S.
13 Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006). While Li
14 claimed to suffer persecution based on his siblings’
15 deficient schooling, we have recognized “that applicants can
16 become candidates for asylum relief only based on
17 persecution that they themselves have suffered or must
18 suffer.” Shi Liang Lin, 494 F.3d at 308. Under these
19 circumstances, the agency did not err in finding that Li
20 failed to establish past persecution on account of his other
21 resistance to China’s family planning laws.
22 The agency’s finding that Li failed to establish a
23 well-founded fear of future persecution is also supported by
5
1 substantial evidence. See Huang v. INS, 421 F.3d 125,
2 128-29 (2d Cir. 2005) (per curiam) (stating that, absent
3 solid support in the record that petitioner would be
4 persecuted under China’s family planning policy, his fear
5 was “speculative at best”). In finding that Li failed to
6 demonstrate a well-founded fear of future persecution, the
7 agency reasonably relied on the fact that Li was able to
8 live in Fuzhou City following the 2001 altercation for four
9 years without incident and returned home a number of times,
10 as well as the fact that he was never arrested or served
11 with a summons. While Li takes issue with the agency’s
12 inference that he would likely face prosecution for his 2001
13 assault on the government official rather than persecution
14 for his other resistance to the country’s family planning
15 policy, it is not the role of this Court to determine which
16 possible inference is the most plausible. See Siewe v.
17 Gonzales, 480 F.3d 160, 168 (2d Cir. 2007) (explaining that
18 “support for a contrary inference – even one more plausible
19 or more natural – does not suggest error”).
20 Although Li appears correct in his contention that the
21 agency erred by failing to consider his November 2004
22 summons from the Lianjiang Public Security Bureau, we
23 decline to remand these proceedings on that basis since
6
1 doing so would be futile. See Xiao Ji Chen v. U.S. Dep’t of
2 Justice, 471 F.3d 315, 339 (2d Cir. 2006) (noting that
3 remand is futile when this Court “can ‘confidently predict’
4 that the agency would reach the same decision absent the
5 errors that were made”) (quoting Cao He Lin v. U.S. Dep't of
6 Justice, 428 F.3d 391, 406 (2d Cir. 2005)). Even assuming
7 that the agency erred in failing to consider his summons in
8 connection with his own violation of the family planning
9 laws, as the agency reasonably determined, Li failed to
10 demonstrate that he ever engaged in any overt acts of
11 resistance in connection with his family planning violation,
12 and, as a result, is unable to show that any harm he might
13 suffer in connection with the 2004 summons would be on
14 account of a protected ground. See Shi Liang Lin, 494 F.3d
15 at 318.
16 Because Li was unable to meet his burden for asylum, he
17 necessarily failed to meet the higher burden required to
18 succeed on a claim for withholding of removal. See Gomez v.
19 INS, 947 F.2d 660, 665 (2d Cir. 1991). Moreover, although,
20 for the purpose of CAT relief, the feared torture does not
21 require any nexus to a protected ground, see 8 C.F.R.
22 § 1208.18(a), as the IJ reasonably noted, Li did “not
23 allege[] [that] he was ever tortured, or why he would be
7
1 more likely than not tortured by the Chinese government in
2 the future.” Therefore, the agency did not err in denying
3 Li CAT relief.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
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