Guang Ti Ye v. Holder , 441 F. App'x 29 ( 2011 )

10-2291-ag
Guang Ti Ye v. Holder
BIA
Chew, IJ
A099 927 013
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 12th day of October, two thousand eleven.
PRESENT:
REENA RAGGI,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_______________________________________
GUANG TI YE,
Petitioner,
v. 10-2291-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Dehai Zhang, Flushing, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Leslie McKay, Assistant
Director; Melissa K. Lott, Attorney,
Office of Immigration Litigation,
Civil Division, 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.
Petitioner Guang Ti Ye, a native and citizen of the
People’s Republic of China, seeks review of a May 26, 2010,
order of the BIA affirming the June 4, 2008, decision of
Immigration Judge (“IJ”) George T. Chew, denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Guang
Ti Ye, No. A099 927 013 (B.I.A. May 26, 2010), aff’g No.
A099 927 013 (Immig. Ct. N.Y. City June 4, 2008). We assume
the parties’ familiarity with the underlying facts and
procedural history of the case.
Under the circumstances of this case, we review both
the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
I. Violation of China’s Family Planning Policy
As an initial matter, the BIA’s application of Shi
Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.
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2007) (en banc), and Matter of J-S-, 24 I. & N. Dec. 520
(A.G. 2008), was not error because the BIA was bound to
apply the law in effect at the time it entered its decision.
See NLRB v. Coca-Cola Bottling Co. of Buffalo, Inc., 55 F.3d
74, 78 (2d Cir. 1995) (“Appellate courts ordinarily apply
the law in effect at the time of the appellate decision.”).
Moreover, Ye had the opportunity to present his claim after
the issuance of Shi Liang Lin because his merits hearing did
not occur until the following year. See Burger v. Gonzales,
498 F.3d 131, 134 (2d Cir. 2007) (holding that “[t]o
establish a violation of due process, an alien must show
that she was denied a full and fair opportunity to present
her claims” (internal quotation marks omitted)).
The BIA reasonably concluded that Ye failed to
demonstrate past persecution or a well-founded fear of
future persecution. Although Ye claimed that he suffered
past persecution, he did not allege that he was physically
harmed or mistreated by family planning officials. See
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 340-41
(2d Cir. 2006) (holding that to constitute persecution, the
harm must be sufficiently severe, rising above “mere
harassment”). Furthermore, as the BIA concluded, Ye was not
eligible for relief based on his wife’s forced abortion.
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See Shi Liang Lin, 494 F.3d at 307-08; see also Gui Yin Liu
v. INS, 508 F.3d 716, 723 (2d Cir. 2007). Moreover, as the
agency noted, Ye failed to present any evidence
demonstrating that he suffered a substantial economic
disadvantage based on the destruction of his furniture. See
Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 69-70
(2d Cir. 2002); see also In re T-Z-, 24 I. & N. Dec. 163,
171-75 (B.I.A. 2007).
The agency also reasonably concluded that Ye failed to
establish a well-founded fear of future persecution because
his only support for that claim was his testimony that he
wanted to have more children. See Jian Xing Huang v. INS,
421 F.3d 125, 129 (2d Cir. 2005) (holding that, absent
“solid support in the record” for the petitioner’s assertion
that he would be subjected to persecution, his fear was
“speculative at best”).
II. Membership in the Chinese Democracy Party (“CDP”)
The IJ did not abuse his discretion in refusing to
grant a continuance for Ye to obtain additional evidence in
support of his CDP claim. See Morgan v. Gonzales, 445 F.3d
549, 551 (2d Cir. 2006) (noting that IJs have “broad
discretion” and “are accorded wide latitude in calendar
management”). The IJ accepted all evidence and testimony Ye
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presented at his hearing and he was not required to afford
Ye additional time to develop his claim. See id. at 552
(concluding that there was no abuse of discretion where
alien was not eligible for relief at the time of the hearing
and that alien had “no right to yet another delay . . . so
that he could attempt to become eligible for such relief”).
Moreover, the agency reasonably determined that Ye failed to
establish a well-founded fear of future persecution based on
his CDP membership, as he did not present any evidence that
Chinese officials were aware or likely to become aware of
his new membership in the CDP or his participation in one
CDP demonstration. See Hongsheng Leng v. Mukasey, 528 F.3d
135, 143 (2d Cir. 2008) (“Put simply, to establish a well-
founded fear of persecution in the absence of any evidence
of past persecution, an alien must make some showing that
authorities in his country of nationality are either aware
of his activities or likely to become aware of his
activities.”).
Because Ye was unable to establish his eligibility for
asylum, he was necessarily unable to establish his
eligibility for withholding of removal based on the same
factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-
57 (2d Cir. 2006). We do not address Ye’s CAT claim as it
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is not addressed in his brief and was not raised before the
BIA. See Gui Yin Liu v. INS, 508 F.3d at 723 n.6.
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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