Sheng Wang Fang v. Holder ( 2011 )

10-2890-ag
Fang v. Holder
BIA
Bukszpan, IJ
A094 787 115
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 27th day of April, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 ______________________________________
13
14 SHENG WANG FANG,
15 Petitioner,
16
17 v. 10-2890-ag
18 NAC
19 ERIC H. HOLDER, JR.,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Cora J. Chang, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Stephen J. Flynn, Assistant
28 Director; Lynda A. Do, Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 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 Sheng Wang Fang, a native and citizen of the People’s
6 Republic of China, seeks review of a June 30, 2010, order of
7 the BIA affirming the January 7, 2008, decision of
8 Immigration Judge (“IJ”) Joanna M. Bukszpan, denying his
9 applications for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Sheng
11 Wang Fang No. A094 787 115 (B.I.A. June 30, 2010), aff’g No.
12 A094 787 115 (Immig. Ct. N.Y. City Jan. 7, 2008). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have
16 considered both the IJ’s and the BIA’s opinions “for the
17 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
18 (2d Cir. 2008) (internal quotation marks omitted). The
19 applicable standards of review are well-established. See 8
20 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
21 513 (2d Cir. 2009).
22 The agency reasonably determined that Fang’s
23 altercation with family planning officials, in which he was
2
1 pushed, and the fact that the officials later prevented him
2 from entering the hospital to see his wife were insufficient
3 to constitute past persecution. See Beskovic v. Gonzales,
4 467 F.3d 223, 226 (2d Cir. 2006) (holding that “the
5 difference between harassment and persecution is necessarily
6 one of degree, [which] must be assessed with regard to the
7 context in which the mistreatment occurs” (internal citation
8 and quotation marks omitted)); Ivanishvili v. U.S. Dep’t of
9 Justice, 433 F.3d 332, 342 (2d Cir. 2006) (stating that harm
10 must be sufficiently severe and rise above “mere harassment”
11 to constitute persecution). The agency also reasonably
12 determined that threats by the family planning officials,
13 related to him by his mother, did not constitute past
14 persecution, see Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d
15 408, 412 (2d Cir. 2006) (per curiam) (noting that “[t]his
16 Court, and others, previously have rejected . . . claims
17 [that] ‘unfulfilled’ threats” constitute persecution), nor
18 does the record compel the conclusion that Fang’s presence
19 during his wife’s abortion constituted such persecution.
20 See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296,
21 309 (2d Cir. 2007) (“We do not deny that an individual whose
22 spouse undergoes, or is threatened with, a forced abortion
23 or involuntary sterilization may suffer a profound emotional
3
1 loss as a partner and a potential parent. But such a loss
2 does not change the requirement that we must follow the
3 ‘ordinary meaning’ of the language chosen by Congress,
4 according to which an individual does not automatically
5 qualify for ‘refugee’ status on account of a coercive
6 procedure performed on someone else.”). Moreover, Fang
7 failed to identify any evidence supporting his claim of
8 psychological harm. See Tao Jiang v. Gonzales, 500 F.3d
9 137, 141-42 (2d Cir. 2007) (requiring a showing of
10 “continuing hardship” for claims based on persecution of
11 family members).
12 The agency also reasonably determined that Fang did not
13 establish a well-founded fear of future persecution because
14 he testified that neither he nor his wife have received any
15 additional threats, and that his wife, who remains in China
16 unharmed, has an IUD and is in compliance with China’s
17 family planning regulations, Certified Admin. R. at 27. See
18 Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
19 (per curiam) (finding that absent “solid support in the
20 record” for a petitioner’s fear that he would be persecuted
21 under the family planning policy, his fear was “speculative
22 at best”); see also Melgar de Torres v. Reno, 191 F.3d 307,
23 313 (2d Cir. 1999) (finding that where asylum applicant’s
4
1 mother and daughters continued to live in petitioner’s
2 native country, claim of well-founded fear was diminished).
3 As Fang was unable to establish his eligibility for
4 asylum, he was necessarily unable to establish his
5 eligibility for withholding of removal and CAT relief on the
6 same factual bases. See Paul v. Gonzales, 444 F.3d 148,
7 155-56 (2d Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
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