Zhen Lin Gao v. Holder ( 2011 )

10-2836-ag
Gao v. Holder
BIA
Lamb, IJ
A094 803 099
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 1st day of August, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 ZHEN LIN GAO,
14 Petitioner,
15
16 v. 10-2836-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: H. Raymond Fasano, Madeo & Fasano,
24 New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Richard M. Evans, Assistant
28 Director; Allen W. Hausman, Senior
29 Litigation Counsel, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED, that the petition for review
5 is DENIED.
6 Zhen Lin Gao, a native and citizen of China, seeks
7 review of a June 16, 2010, order of the BIA affirming the
8 August 4, 2008, decision of Immigration Judge (“IJ”)
9 Elizabeth A. Lamb, which denied his application for asylum,
10 withholding of removal, and relief under the Convention
11 Against Torture (“CAT”). In re Zhen Lin Gao, No. A094 803
12 099 (B.I.A. June 16, 2010), aff’g No. A094 803 099 (Immig.
13 Ct. N.Y.C. Aug. 4, 2008). We assume the parties’
14 familiarity with the underlying facts and procedural history
15 in this case.
16 Under the circumstances of this case, we have reviewed
17 the IJ’s decision as modified by the BIA decision. See Xue
18 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
19 Cir. 2005). The applicable standards of review are well-
20 established. 8 U.S.C. § 1252(b)(4)(B); see Yanqin Weng v.
21 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
22 Under 8 U.S.C. § 1101(a)(42), an individual who was not
23 personally subject to a forced abortion or sterilization may
2
1 still establish eligibility for asylum by showing that he
2 engaged in “other resistance to a coercive population
3 control program,” and that as a result of that resistance,
4 he was persecuted. Shi Liang Lin v. U.S. Dep’t of Justice,
5 494 F.3d 296, 309-10 (2d Cir. 2007) (en banc); see also
6 Matter of J-S-, 24 I. & N. Dec. 520, 536-38 (A.G. 2008)
7 (adopting the holding in Shi Liang Lin). The agency did not
8 err in finding that Gao did not demonstrate that any harm he
9 suffered was on account of his resistance to a coercive
10 population control program. Gao stated that he was hurt
11 when, as a 14-year-old, he hung onto his mother’s leg when
12 she was being taken off to be sterilized. But he submitted
13 no evidence that when he clung to his mother’s leg he was
14 acting in resistance to a coercive population control
15 program. Rather, he stated in both his asylum application
16 and testimony that he grabbed his mother’s leg because he
17 was scared. See Shi Liang Lin, 494 F.3d at 313.
18 Because the agency reasonably concluded that Gao did
19 not suffer past persecution, he is not entitled to a
20 presumption of future persecution. See 8 C.F.R.
21 § 208.13(b)(1). Gao makes no argument concerning a fear of
22 future persecution independent from his claim of past
3
1 persecution. Consequently, the agency reasonably concluded
2 that Gao did not meet his burden of establishing a well-
3 founded fear of future persecution. Because Gao did not
4 demonstrate past persecution, or a well-founded fear of
5 future persecution, the agency did not err in denying his
6 applications for asylum and withholding of removal, which
7 shared the same factual predicate. See Xue Hong Yang, 426
8 F.3d at 522-23.
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
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