Saiping Wu v. Holder ( 2010 )

09-1356-ag
Wu v. Holder
BIA
Bukszpan, IJ
A098 889 527
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 9 th day of July, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 GUIDO CALABRESI,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _______________________________________
12
13 SAIPING WU,
14 Petitioner,
15
16 v. 09-1356-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Dehai Zhang, Flushing, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Susan K. Houser, Senior
27 Litigation Counsel, T. Bo Stanton,
28 Attorney, Office of Immigration
29 Litigation, Civil Division, United
30 States Department of Justice,
31 Washington, D.C.
32
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 Petitioner Saiping Wu, a native and citizen of China,
6 seeks review of the March 6, 2009, order of the BIA,
7 affirming the November 30, 2006, decision of Immigration
8 Judge (“IJ”) Joanna Miller Bukszpan denying his application
9 for asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Saiping Wu, No.
11 A098 889 527 (B.I.A. Mar. 6, 2009), aff’g No. A098 889 527
12 (Immig. Ct. N.Y. City Nov. 30, 2006). 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 review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d
20 90, 95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d
21 99, 110 (2d Cir. 2008).
22
2
1 The agency reasonably found that even assuming Wu
2 resisted the family planning policy by hiding in the
3 mountains with his wife, he failed to establish his
4 eligibility for asylum. The BIA correctly found that Wu was
5 ineligible for relief based solely on his wife’s forced
6 sterilization. See Shi Liang Lin v. U.S. Dep’t of Justice,
7 494 F.3d 296, 309-10 (2d Cir. 2007); see also Matter of S-L-
8 L-, 24 I & N Dec. 1 (BIA 2006). In addition, the BIA found
9 that Wu had not engaged in “other resistance” to China’s
10 family planning policy, but that even assuming he did, he
11 had not established that: (1) the “hardships” he suffered
12 rose to the level of persecution; and (2) he suffered
13 “hardships” on account of his resistance (i.e. hiding with
14 his wife). Shi Liang Lin, 494 F.3d at 309-10.
15 Wu also argues that the agency deprived him of due
16 process by relying on a “sudden change of law.” This
17 argument, however, is without merit because he failed to
18 exhaust any challenge to the IJ’s finding that his wife’s
19 forced sterilization did not render him per se eligible for
20 asylum. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
21 104, 119-20 (2d Cir. 2007).
3
1 As Wu failed to demonstrate his eligibility for asylum,
2 he necessarily failed to meet his burden for withholding of
3 removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
4 2006). Additionally, the single sentence in Wu’s brief
5 related to the agency’s denial of his application for CAT
6 relief is insufficient to raise that issue for our review.
7 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7
8 (2d Cir. 2005).
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
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