Guang Ming Li v. Holder , 387 F. App'x 78 ( 2010 )

09-2757-ag
Li v. Holder
BIA
Videla, IJ
A099 683 902
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 22 nd day of July, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 GUANG MING LI,
15 Petitioner,
16
17 v. 09-2757-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Richard Tarzia,
25 Belle Mead, New Jersey.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Luis E. Perez, Senior
29 Litigation Counsel; Edward C.
1 Durant, Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED, that the petition for review
9 is DENIED.
10 Guang Ming Li, a native and citizen of the People’s
11 Republic of China, seeks review of a May 29, 2009, order of
12 the BIA, affirming the February 14, 2008, decision of
13 Immigration Judge (“IJ”) Gabriel C. Videla, which denied his
14 application for asylum and withholding of removal. In re
15 Guang Ming Li, No. A099 683 902 (B.I.A. May 29, 2009), aff’g
16 No. A099 683 902 (Immig. Ct. N.Y. City Feb. 14, 2008). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we review the
20 decision of the IJ as supplemented by the BIA. See Yan Chen
21 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 applicable standards of review are well-established. See
23 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);
24 Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d
25 Cir. 2007).
2
1 Li argues that his wife’s sterilization constituted
2 past persecution with respect to his asylum claim because it
3 prevented him from “being allowed to enjoy the basic human
4 right of procreating with his wife.” This argument fails,
5 because, as the agency noted, we have squarely rejected the
6 notion that an alien is per se eligible for relief based on
7 the forced sterilization of his or her spouse. See Shi
8 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309 (2d
9 Cir. 2007).
10 While the involuntary sterilization of one’s spouse is
11 not per se persecution, applicants may base their claims on
12 “persecution that they themselves have suffered or must
13 suffer” on account of their “other resistance” to a coercive
14 family planning policy. Shi Liang Lin, 494 F.3d at 308-10;
15 8 U.S.C. § 1101(a)(42). Li argues that he was persecuted
16 for resisting family planning officials, and that the BIA
17 erred in finding that he never testified to fighting with
18 the officials. However, the BIA did not err in finding that
19 Li’s claim on appeal differed from his claim before the IJ.
20 See 8 C.F.R. § 1003.1(d)(3)(iv). Indeed, while Li argued
21 before the BIA that he fought with family planning cadres in
22 an attempt to prevent his wife’s sterilization, he testified
3
1 before the IJ that he was away “at sea” when his wife was
2 forcibly sterilized. Accordingly, the BIA’s finding that Li
3 “never testified that he fought with these officials” was
4 supported by substantial evidence. See Salimatou Bah, 529
5 F.3d at 110.
6 In his brief before this Court, Li points to his
7 testimony that he confronted the family planning officials
8 after his wife’s sterilization, suggesting that he thereby
9 raised a claim of past persecution based on his “other
10 resistance” to the family planning policy. While the record
11 reflects that Li testified to a confrontation he had with
12 the family planning officials after his wife’s
13 sterilization, that testimony did not provide a basis for
14 Li’s argument on appeal before the BIA. To the extent that
15 Li raises this incident as a basis for his claim of past
16 persecution before this Court, we decline to consider the
17 claim in the first instance. See Lin Zhong v. U.S. Dep’t of
18 Justice, 480 F.3d 104, 122 (2d Cir. 2007). Moreover, even
19 if the BIA erred in failing to construe Li’s argument on
20 appeal as referring to the confrontation after his wife’s
21 sterilization, remand on that basis would be futile because
22 we can “confidently predict” that the agency would find that
4
1 this incident – in which Li was merely threatened with
2 detention – did not constitute past persecution. See Xiao
3 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.
4 2006) (holding that remand is futile “when the reviewing
5 court can ‘confidently predict’ that the agency would reach
6 the same decision absent the errors that were made” (quoting
7 Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d
8 Cir. 2005)); Guan Shan Liao v. U.S. Dep’t of Justice, 293
9 F.3d 61, 70 (2d Cir. 2002) (stating that a “threat of
10 detention . . . itself . . . is not past persecution”).
11 Finally, to the extent that Li argues that he fears
12 persecution based on his illegal departure, because he
13 failed to exhaust this claim before the BIA, we decline to
14 address it. See Lin Zhong, 480 F.3d at 122. Because Li’s
15 withholding of removal claim was based on the same set of
16 facts as his asylum claim, the agency’s reasonable finding
17 that he had not met his burden of proof with respect to
18 asylum was a sufficient basis to deny both forms of relief.
19 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
23 is VACATED, and any pending motion for a stay of removal in
5
1 this petition is DENIED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2) and Second
4 Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
6