Xue an Wang v. Holder

10-1479-ag
Wang v. Holder
BIA
Laforest, IJ
A099 589 986
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 21st day of February, two thousand twelve.
PRESENT:
ROGER J. MINER,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
XUE AN WANG,
Petitioner,
v. 10-1479-ag
NAC
ERIC H. HOLDER, JR.,
Respondent.*
_______________________________________
FOR PETITIONER: Xue An Wang, pro se, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ernesto H. Molina, Jr.,
Assistant Director; Gladys M.
Steffens Guzmán, Trial Attorney,
*
The clerk of court is directed to amend the official
caption as set forth above.
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Xue An Wang, a native and citizen of the People’s
Republic of China, seeks review of a March 29, 2010,
decision of the BIA affirming the May 28, 2008, decision of
immigration judge (“IJ”) Brigitte Laforest, denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). See In re Xue
An Wang, No. A099 589 986 (B.I.A. Mar. 29, 2010), aff’g No.
A099 589 986 (Immigr. Ct. N.Y. City May 28, 2008). We
assume the parties’ familiarity with the underlying facts
and procedural history of this case.
Under the circumstances of this case, we review both
the BIA’s and IJ’s decisions. See Zaman v. Mukasey, 514
F.3d 233, 237 (2d Cir. 2008). The applicable standards of
review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
Aliyev v. Mukasey, 549 F.3d 111, 115 (2d Cir. 2008).
Substantial evidence supports the agency’s decision.
2
The agency correctly concluded that Wang was not
eligible for asylum solely on the basis of his wife’s forced
sterilization. See Shi Liang Lin v. U.S. Dep’t of Justice,
494 F.3d 296, 309–310 (2d Cir. 2007) (en banc).
Nevertheless, even though Wang was not per se eligible for
asylum based on his wife’s forced sterilization, he could
still qualify for relief by demonstrating that: (1) he
engaged in “other resistance” to the family planning policy;
and (2) he suffered harm rising to the level of persecution
or has a well-founded fear of suffering such harm as a
direct result of his resistance. See id. at 313; Matter of
J-S-, 24 I. & N. Dec. 520, 523 (A.G. 2008).
The agency assumed that Wang had engaged in resistance
to China’s family planning policy, and reasonably determined
that he did not establish that he suffered harm rising to
the level of persecution on account of that resistance,
particularly when Wang did not allege that he personally
suffered any emotional, physical, or economic harm arising
from the unfortunate incidents involving family planning
officials. See Shi Liang Lin, 494 F.3d at 309 (stating that
“an individual whose spouse undergoes . . . a forced
abortion or involuntary sterilization may suffer a profound
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emotional loss,” but providing that “an individual does not
automatically qualify for ‘refugee’ status on account of a
coercive procedure performed on someone else” (emphasis
added)); see also Mei Fun Wong v. Holder, 633 F.3d 64, 72
(2d Cir. 2011) (emphasizing “that persecution is an extreme
concept that does not include every sort of treatment our
society regards as offensive” (internal quotation marks
omitted)). Additionally, the agency did not err in
concluding that Wang failed to demonstrate that his fear of
future persecution was objectively reasonable because he
admitted that he had lived unharmed in China for 13 years
after his wife’s forced sterilization. See 8 C.F.R.
§ 1208.13(b)(2); cf. Melgar de Torres v. Reno, 191 F.3d 307,
313 (2d Cir. 1999) (finding that, because asylum applicant’s
mother and daughters continued to live in petitioner’s
native country without harm, claim of well-founded fear of
persecution was weakened). Accordingly, because the agency
did not err in finding that Wang failed to demonstrate
either past persecution or a well-founded fear of
persecution, it reasonably denied him asylum and
withholding of removal as those claims were based on the
same factual predicate. See Paul v. Gonzales, 444 F.3d 148,
156 (2d Cir. 2006).
4
Wang does not challenge in his brief to this Court the
agency’s denial of CAT relief, and we therefore deem it
waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545
n.7 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DENIED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2) and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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