Zi Ji Chen v. Holder , 451 F. App'x 62 ( 2012 )

11-697-ag
Chen v. Holder
BIA
Lamb, IJ
A094 803 028
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 26th 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 ZI JI CHEN,
14 Petitioner,
15
16 v. 11-697-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL, UNITED STATES
20 DEPARTMENT OF JUSTICE,
21 Respondents.
22 _______________________________________
23
24 FOR PETITIONER: Yee Ling Poon; Robert Duk-Hwan Kim,
25 New York, New York.
26
27 FOR RESPONDENTS: Tony West, Assistant Attorney
28 General; Blair O’Connor, Assistant
29 Director; Kathryn L. Moore,
30 Attorney, Office of Immigration
31 Litigation, United States Department
32 of Justice, 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 Zi Ji Chen, a native and citizen of the People’s
6 Republic of China, seeks review of a January 28, 2011, order
7 of the BIA affirming the February 2, 2009, decision of
8 Immigration Judge (“IJ”) Elizabeth A. Lamb, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Chen,
11 No. A094 803 028 (B.I.A. Jan. 28, 2011), aff’g No. A094 803
12 028 (Immig. Ct. N.Y. City Feb. 2, 2009). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 This Court has held that an individual is not per se
21 eligible for asylum based on the forced abortion or
22 sterilization of a spouse or partner because “applicants can
23 become candidates for asylum relief only based on
2
1 persecution that they themselves have suffered or must
2 suffer.” Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d
3 296, 308 (2d Cir. 2007). In the absence of per se
4 persecution based on his wife’s abortion, Chen had to
5 demonstrate “other resistance to a coercive population
6 control program” and that he was persecuted as a result of
7 that resistance. See id. (citation omitted). However, Chen
8 does not claim that he suffered any harm independent from
9 his wife’s abortion, or that he engaged in any resistance to
10 China’s population control program. As a result, the agency
11 correctly determined that he was unable to establish that he
12 suffered past persecution. See id.13 Chen also argues that he has a well-founded fear of
14 future persecution because he and his wife plan to have more
15 children, and if they have a second child, there is a
16 reasonable possibility that he will be sterilized. However,
17 the agency did not err in finding that Chen’s claim was too
18 speculative to establish an objectively reasonable fear of
19 persecution. See Jian Xing Huang v. INS, 421 F.3d 125, 128-
20 29 (2d Cir. 2005).
21 Because Chen was unable to establish either past
22 persecution or a well-founded fear of future persecution,
3
1 the agency did not err in denying his application for
2 asylum. See 8 C.F.R. § 1208.13(b); Ramsameachire v.
3 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). Moreover,
4 because Chen was unable to show the objective likelihood of
5 persecution needed to make out an asylum claim, he was
6 necessarily unable to meet the higher standard required to
7 succeed on a claim for withholding of removal. See Paul v.
8 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Gomez v. INS,
9 947 F.2d 660, 665 (2d Cir. 1991).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
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