Xiao Wang Zhou v. Holder

11-3686 BIA
Zhou-Xiao v. Holder Ferris, IJ
A099 523 291
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 28th day of September, two thousand twelve.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 Xiao Wang Zhou,*
14 Petitioner,
15
16 11-3686
17 v. NAC
18
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Edward J. Cuccia, Ferro & Cuccia
26 Esq., New York, New York.
*
The Clerk of Court is directed to amend the official caption as shown above.
1
2 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
3 Attorney General; Cindy S. Ferrier,
4 Assistant Director; Michele Y.F.
5 Sarko, Trial Attorney, Office of
6 Immigration Litigation, United
7 States Department of Justice,
8 Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner Xiao Wang Zhou, a native and citizen of
15 China, seeks review of a August 16, 2011, decision of the
16 BIA affirming the July 29, 2009, decision of an Immigration
17 Judge (“IJ”) denying his application for asylum, withholding
18 of removal, and relief under the Convention Against Torture
19 (“CAT”). In re Wang Zhou-Xiao, No. A099 523 291 (B.I.A.
20 Aug. 16, 2011), aff’g No. A099 523 291 (Immig. Ct. N.Y. City
21 July 29, 2009). We assume the parties’ familiarity with the
22 underlying facts and procedural history of this case.
23 The applicable standards of review are well established.
24 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
25 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam);
26 Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
27 Because Zhou has not challenged the agency’s denial of
28 CAT relief, we address only the agency’s denial of asylum
2
1 and withholding of removal. Furthermore, the Government
2 challenges Zhou’s failure to exhaust his argument that he
3 demonstrated other resistance because his wife had an
4 intrauterine device (“IUD”) forcibly inserted in October
5 2000, and he and his wife knowingly defied China’s family
6 planning policy by having the IUD removed and attempting to
7 have a second child. We therefore decline to consider the
8 argument. Cf. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
9 104, 118-20 (2d Cir. 2007) (noting that the issue exhaustion
10 requirement, though not jurisdictional, is “mandatory” where
11 raised by the Government).
12 As to the merits of Zhou’s asylum claim, the agency
13 reasonably determined that Zhou failed to establish past
14 persecution. Zhou asserted that government officials
15 harassed him and threatened to sterilize him unless his wife
16 had an IUD inserted. The agency reasonably found that this
17 mistreatment did not rise to the level of persecution, as
18 Zhou did not assert that he had ever been arrested,
19 detained, physically assaulted, or sterilized, and unfilled
20 threats generally are insufficient to qualify as
21 persecution. See Gui Ci Pan v. U.S. Attorney Gen., 449 F.3d
22 408, 412 (2d Cir. 2006) (per curiam) (noting that courts
23 have “rejected [persecution] claims involving ‘unfulfilled’
3
1 threats”); Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d
2 332, 341 (2d Cir. 2006) (explaining that “persecution does
3 not encompass mere harassment.”).
4 The agency also reasonably determined that Zhou failed
5 to establish a well-founded fear of future persecution
6 because the Chinese officials’ motivation for the threats
7 and harassment—requiring his wife to have an IUD in order to
8 comply with the family planning policy—no longer exists, as
9 his wife agreed to have an IUD in order to enroll their son
10 in school. Zhou’s assertion that he faces future
11 persecution due to his past actions to avoid the family
12 planning policy is belied by the fact that his wife has
13 faced no reprisals for her actions to avoid the same policy.
14 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)
15 (finding that where asylum applicant’s mother and daughters
16 continued to live in petitioner’s native country,
17 petitioner’s claim of well-founded fear was diminished).
18 Moreover, as the BIA determined, the 2007 State Department
19 Country Report for China does not show that authorities use
20 measures amounting to persecution to enforce the family
21 planning policy in Zhou’s home province of Fujian, and Zhou
22 has not challenged that conclusion. See Tu Lin v. Gonzales,
23 446 F.3d 395, 400 (2d Cir. 2006) (explaining that State
4
1 Department country profiles are “probative,” but cautioning
2 that such reports “do not automatically discredit contrary
3 evidence presented by the applicant, and are not binding on
4 the immigration court”) (internal quotation marks and
5 alteration omitted). Because Zhou failed to allege past
6 harm rising to the level of persecution or an objectively
7 reasonably fear of future persecution, as needed to make out
8 an asylum claim, and because the same factual predicate
9 exists for both his asylum claim and his withdrawal claim,
10 he is necessarily unable to meet the higher standard
11 required to succeed on a claim for withholding of removal.
12 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of removal
15 that the Court previously granted in this petition is
16 VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
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