Yun Zhang v. United States Department of Justice , 454 F. App'x 18 ( 2012 )

10-3799-ag
Zhang v. US DOJ
BIA
Mulligan, IJ
A088 379 705
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 4th day of January, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
DENNY CHIN,
Circuit Judges.
_____________________________________
YUN ZHANG,
Petitioner,
v. 10-3799-ag
NAC
UNITED STATES DEPARTMENT OF JUSTICE,
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondents.
_______________________________________
FOR PETITIONER: David A. Bredin, New York, New York.
FOR RESPONDENTS: Tony West, Assistant Attorney General;
Ernesto H. Molina, Jr., Assistant
Director; Tracey N. McDonald, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Yun Zhang, a native and citizen of the People’s Republic
of China, seeks review of an August 25, 2010, order of the
BIA, affirming the March 12, 2008, decision of Immigration
Judge (“IJ”) Thomas J. Mulligan, which denied his application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Yun Zhang, No. A088
379 705 (B.I.A. Aug. 25, 2010), aff’g No. A088 379 705 (Immig.
Ct. N.Y. City Mar. 12, 2008). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as the final agency determination. See
Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The
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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).
Zhang’s asylum claim was based entirely on his wife’s
forced abortion. At the hearing before the IJ, Zhang
confirmed that his asylum application contained the complete
set of facts concerning his claim and that there was nothing
else he wished to add. However, we have explained that a
woman’s forced abortion does not qualify as per se persecution
with respect to her spouse. See Shi Liang Lin v. U.S. Dep’t
of Justice, 494 F.3d 296, 309 (2d Cir. 2007). Although Zhang
argues that he personally suffered emotional harm due to his
wife’s forced abortion, we have rejected this argument, noting
that the “profound emotional loss as a partner and potential
parent . . . does not change the requirement that we must
follow the ‘ordinary meaning’ of the language chosen by
Congress, according to which an individual does not
automatically qualify for ‘refugee’ status on account of a
coercive procedure performed on someone else.” Id.Accordingly, the agency did not err in finding that Zhang was
not eligible for asylum and withholding of removal based on
his wife’s forced abortion. See id.-3-
We note that while a spouse’s forced abortion is not per
se persecution, applicants may base their claims on
“persecution that they themselves have suffered or must
suffer” on account of their “other resistance” to a coercive
family planning policy. See Shi Liang Lin, 494 F.3d at 308-
10; 8 U.S.C. § 1101(a)(42). Remand for further development of
the record is not required, however, because Zhang raises no
“other resistance” claim before this Court, nor did so before
the agency. See Shu Wen Sun v. BIA, 510 F.3d 377, 381 n.5 (2d
Cir. 2007).
Similarly, the agency did not err in finding that Zhang
failed to establish eligibility for CAT relief. Contrary to
Zhang’s argument, the IJ did not err in failing to analyze
Zhang’s eligibility for CAT relief independently, as Zhang did
not raise any independent CAT claim before the IJ. See Xue
Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.
2006).
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 DENIED as moot. Any pending request for oral argument in
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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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