Gan Gao v. Holder

11-2631-ag
Gao v. Holder
BIA
Nelson, IJ
A099 936 378
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 27th day of April, two thousand twelve.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 GAN GAO,
14 Petitioners,
15
16 v. 11-2631-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONERS: Eric Y. Zheng, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Carl H. McIntyre, Assistant
27 Director; Justin R. Markel, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DISMISSED in part and DENIED in part.
5 Gan Gao, a native and citizen of the People’s Republic
6 of China, seeks review of a May 31, 2011, decision of the
7 BIA affirming the March 4, 2009, decision of Immigration
8 Judge (“IJ”) Barbara A. Nelson denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Gan Gao, No. A099
11 936 378 (B.I.A. May 31, 2011), aff’g No. A099 936 378
12 (Immig. Ct. N.Y. City Mar. 4, 2009). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 of this case.
15 As an initial matter, we lack jurisdiction to review
16 the IJ’s denial of asylum based on her determination that
17 Gao had firmly resettled in Canada prior to his arrival in
18 the United States, as Gao failed to challenge the IJ’s
19 determination before the BIA in the first instance. See
20 8 U.S.C. § 1252(d)(1); see also Karaj v. Gonzales, 462 F.3d
21 113, 119 (2d Cir. 2006). Accordingly, we dismiss the
22 petition for review to that extent.
23
2
1 Withholding of Removal & CAT
2 Under the circumstances of this case, we have reviewed
3 both the IJ’s and the BIA’s opinions “for the sake of
4 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
5 2008) (per curiam). The applicable standards of review are
6 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
7 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
8 A. Land Dispute Claim
9 We find that the agency reasonably determined that Gao
10 failed to demonstrate that the harm he suffered during the
11 course of a land dispute with local government officials
12 constituted persecution on account of his actual or imputed
13 political opinion. 8 U.S.C. § 1158(b)(1)(B)(i). For
14 applications for withholding of removal governed by the REAL
15 ID Act, “the applicant must establish that race, religion,
16 nationality, membership in a particular social group, or
17 political opinion was or will be at least one central reason
18 for persecuting the applicant.” 8 U.S.C.
19 § 1158(b)(1)(B)(i).
20 Here, Gao testified that his repeated confrontations
21 with local land officials were motivated solely by his
22 desire to resolve a private land dispute, in which he had a
3
1 personal financial interest at stake, and, as the BIA noted,
2 not by any desire to vindicate the rights of other
3 leaseholders or express his opposition to government
4 corruption or wrongdoing. Although Gao argues that what
5 began as a private land dispute graduated to political
6 expression when he filed a lawsuit against the local land
7 officials, his argument is not supported by the record, as
8 Gao testified only that he filed the lawsuit to challenge
9 the violation of his personal land rights. Moreover, Gao
10 did not present any evidence indicating that the local
11 government officials and law enforcement personnel
12 mistreated him because they perceived him as having an anti-
13 government political opinion, instead testifying that he was
14 beaten on two occasions after being accused of disturbing
15 the peace. See e.g., Chun Gao v. Gonzales, 424 F.3d 122, 129
16 (2d Cir. 2005) (holding that “an imputed political opinion,
17 whether correctly or incorrectly attributed, can constitute
18 a ground of political persecution within the meaning of the
19 [INA]”). Accordingly, the agency did not err in finding
20 that Gao failed to establish past persecution on the basis
21 of an actual or imputed political opinion. See Yueqing
22 Zhang, 426 F.3d at 545 (internal citation omitted).
23
4
1 The BIA also reasonably found that Gao failed to
2 establish a likelihood of future persecution in China, as he
3 did not present any evidence indicating that local land
4 officials continued to threaten him after his departure from
5 China in 2004. See 8 C.F.R. § 1208.16(b)(2). Moreover,
6 the BIA reasonably determined that Gao’s fear of future
7 persecution was undermined by the fact that his parents
8 continued to live unharmed on the same property that was the
9 subject of the land dispute. See 8 C.F.R. § 1208.16(b)(2);
10 see also Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d
11 Cir. 1999) (finding that an applicant’s fear of persecution
12 was undermined when his family remained in the native
13 country unharmed). Finally, the BIA reasonably concluded
14 that Gao failed to establish a likelihood of persecution in
15 China based on a pattern or practice of persecution of
16 Chinese citizens in land use matters, as Gao did not submit
17 any evidence showing that the threat of harm to these
18 individuals is systemic, pervasive or organized. See
19 8 C.F.R. § 1208.16(b)(2); Mufied v. Mukasey, 508 F.3d 88, 92
20 (2d Cir. 2007).
21 B. Family Planning Claim
22 We further find that the agency reasonably determined
23 that Gao failed to meet his burden in demonstrating past
5
1 persecution or a likelihood of persecution based on his wife
2 having been forced to undergo an IUD insertion procedure.
3 As the agency properly determined, Gao’s claim based on his
4 wife’s forced IUD insertion is foreclosed by our decision in
5 Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d
6 Cir. 2007), which squarely rejected the notion that an alien
7 is per se eligible for relief based on harm suffered by
8 their spouse. See 494 F.3d at 309. Additionally, the BIA
9 reasonably determined that Gao failed to establish past
10 persecution or a likelihood of future persecution on account
11 of his “other resistance” to China’s family planning policy,
12 as he did not testify that he was ever arrested, detained,
13 sterilized, or otherwise harmed, and did not present any
14 evidence indicating that family planning officials continued
15 to pursue or threaten him after his departure from China in
16 2004. See Shi Liang Lin, 494 F.3d at 313; See also 8 C.F.R.
17 § 1208.16(b)(2).
18 Because the agency reasonably concluded that Gao failed
19 to establish past persecution or a likelihood of persecution
20 on account of a protected ground in relation to his land
21 dispute claim, and because substantial evidence supports the
22 agency’s determination that Gao failed to establish past
23 persecution or a likelihood of persecution on account of his
6
1 other resistance to China’s family planning policy, it did
2 not err in denying withholding of removal and CAT relief, as
3 both claims shared the same factual predicate. See Xue Hong
4 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.
5 2006).
6 For the foregoing reasons, the petition for review is
7 DISMISSED in part and DENIED in part. As we have completed
8 our review, any stays of removal that the Court previously
9 granted in this petition are VACATED, and any pending motion
10 for a stays of removal in this petition are DISMISSED as
11 moot. Any pending request for oral argument in this
12 petition is DENIED in accordance with Federal Rule of
13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
14 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
19
20
21
22
7