Zhian Dang v. Holder

10-4949-ag
Dang v. Holder
BIA
Nelson, I.J.
A073 162 411
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 21st day of February, two thousand twelve.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 ______________________________________
12
13 ZHIAN DANG, AKA ZHIAN WANG,
14 Petitioner,
15 10-4949-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Zhian Dang, pro se, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Blair T. O’Connor,
28 Assistant Director, Joseph D. Hardy,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Petitioner Zhian Dang, a native and citizen of China,
6 seeks review of a November 17, 2010, decision of the BIA
7 affirming the November 4, 2008, decision of Immigration
8 Judge (“IJ”) Barbara A. Nelson, finding that Dang was
9 incredible and denying his application for asylum and
10 withholding of removal. In re Zhian Dang, No. A073 162 411
11 (B.I.A. Nov. 17, 2010), aff’g, No. A073 162 411 (Immig. Ct.
12 N.Y. City Nov. 4, 2008). We assume the parties’ familiarity
13 with the underlying facts and procedural history.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as supplemented by the BIA. See Yan Chen
16 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
17 applicable standards of review are well-established. See
18 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
19 510, 513 (2d Cir. 2009).
20 In finding that Dang was incredible, the agency
21 reasonably relied on his failure to include his wife’s
22 sterilization in his asylum application. Although Dang
2
1 contends that the sterilization was omitted from the
2 application because it was prepared by a “travel agency,” he
3 also failed to mention the sterilization in his interview
4 with an asylum officer.
5 Moreover, as his application was based on persecution
6 under China's family planning policies – namely threats of
7 intra-uterine device implantation and sterilization – the
8 omission of his wife's sterilization was substantial and
9 bore a legitimate nexus to his claim. See Cheng Tong Wang
10 v. Gonzales, 449 F.3d 451, 453-54 (2d Cir. 2006) (finding
11 agency properly based adverse credibility determination on
12 applicant's failure to mention his wife’s forced
13 sterilization in his asylum application, given that his
14 “claim for asylum was based on his failure to comply with
15 China's family-planning program”). While Dang has presented
16 evidence that his wife was sterilized, this evidence does
17 not indicate when his wife was sterilized, or whether it was
18 an involuntary procedure, and does not compel the conclusion
19 that the credibility finding must be reversed. See Ahmed v.
20 Ashcroft, 286 F.3d 611, 612 (2d Cir. 2002).
21 Furthermore, even if Dang’s testimony were considered
22 to be credible, the agency reasonably found, in the
3
1 alternative, that he did not meet his burden of
2 demonstrating past persecution or a well-founded fear of
3 future persecution. The sterilization of Dang’s wife does
4 not constitute per se persecution with respect to Dang. See
5 Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 308-09
6 (2d Cir. 2007). He was therefore required to demonstrate
7 “other resistance” to the family planning policies, and
8 persecution as a result of this resistance, or a
9 well-founded fear that he will be subject to persecution due
10 to his resistance. Id. at 309-10, 313 (quoting 8 U.S.C.
11 § 1101(a)(42)).
12 Even assuming that Dang’s efforts to hide from family
13 planning authorities constitutes “other resistance,” the
14 agency reasonably found that he did not suffer harm rising
15 to the level of persecution on account of this resistance.
16 Dang testified that he was required to pay a fine for
17 violating the family planning policies, but did not allege
18 that he was arrested, physically harmed or otherwise
19 mistreated by the authorities. See Ivanishvili v. U.S.
20 Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006). In his
21 brief, Dang does not argue that the fine constituted
22 persecution, and he has therefore waived this argument.
4
1 Further, Dang has failed to demonstrate a well-founded
2 fear of future persecution, as he has identified no basis
3 for his belief that he will be persecuted if he returns to
4 China. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d
5 Cir. 2005). Accordingly, the agency did not err in finding
6 that Dang failed to meet his burden in establishing past
7 persecution or a well-founded fear of persecution, or in
8 rejecting his claim for withholding of removal based on the
9 same factual predicate. See Shi Liang Lin, 494 F.3d at 313;
10 Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
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