Jian Kang Wu v. Holder

10-3846-ag
Wu v. Holder
BIA
Mulligan, IJ
A071 961 121
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 20th day of April, two thousand twelve,
PRESENT:
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
JIAN KANG WU,
Petitioner,
v. 10-3846-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Thomas V. Massucci, New York,
New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ethan B. Kanter, Senior
Litigation Counsel; John M. McAdams,
Jr., Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Jian Kang Wu, a native and citizen of the
People’s Republic of China, seeks review of an August 25,
2010 order of the BIA, affirming the October 15, 2008,
decision of an Immigration Judge (“IJ”), which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Jian
Kang Wu, No. A071 961 121 (B.I.A. Aug. 25, 2010), aff’g No.
A071 961 121 (Immig. Ct. N.Y. City Oct. 15, 2008). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review the
IJ’s decision as modified by the BIA decision, i.e., minus
the adverse credibility determination not relied upon by the
BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
520, 522 (2d Cir. 2005). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Although Wu claims that he suffered past persecution
due to his wife’s forced sterilization, the forced
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sterilization of one’s spouse does not qualify as per se
persecution and does not alone create a presumption of a
well-founded fear. See Shi Liang Lin v. U.S. Dep’t of
Justice, 494 F.3d 296, 308-09 (2d Cir. 2007); 8 C.F.R.
§ 1208.13(b)(1). Moreover, even if Wu demonstrated “other
resistance” to the family planning policy, his testimony
supported the agency’s determination that he did not suffer
harm rising to the level of persecution. See Jian Qiu Liu
v. Holder, 632 F.3d 820, 822 (2d Cir. 2011). Although Wu
claimed to fear economic persecution based on the imposition
of a 3,000 Renminbi fine, the agency reasonably determined
that Wu failed to establish that the amount was sufficiently
onerous to constitute persecution. See Guan Shan Liao v.
U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002).
Having found that Wu did not demonstrate past
persecution, the agency also reasonably determined his fear
of future sterilization was not objectively reasonable,
noting that “[s]ince [his] wife has already been sterilized,
it would be hard to believe that the [Chinese] Government
would be looking for him for 17 years to sterilize him as
well.” See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d
Cir. 2005). Accordingly, the agency did not err in finding
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that Wu failed to meet his burden of showing that he was
persecuted or that he had an objectively reasonable fear
that he would be persecuted due to his violation of the
family planning policy. Similarly, in finding that Wu
failed to meet his burden in demonstrating a well-founded
fear of persecution on account of his Catholic religion, the
agency reasonably relied upon Wu’s testimony that his family
had been practicing Catholicism unharmed in China for over
20 years and his wife’s omission from her letter of
reference to any problems due to her religion. Cf. Melgar
de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).
Although Wu is correct that the BIA erred in applying
the REAL ID Act because his initial asylum application was
filed before May 11, 2005, remand is not required, because
we are “confident that the agency would reach the same
result upon a reconsideration cleansed of errors.” Li Hua
Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 107 (2d Cir.
2006). Wu does not point to any distinction between the
REAL ID Act and pre-REAL ID Act law that impacts his case,
nor is any relevant distinction apparent upon review.
Moreover, the BIA explicitly stated its agreement with the
IJ’s burden finding, which did not include any reference to,
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or reliance on, the REAL ID Act. Because the agency did not
err in denying Wu’s application for asylum, it also did not
err in denying his application for withholding of removal.
See Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED 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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