Zhiyun Thang v. Holder

10-1754-ag
Thang v. Holder
BIA
Elstein, IJ
A094 798 077
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 2nd day of May, two thousand eleven.
5
6 PRESENT:
7 JON O. NEWMAN,
8 PIERRE N. LEVAL,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _______________________________________
12
13 ZHIYUN THANG,
14 Petitioner,
15
16 v. 10-1754-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Richard Tarzia, Belle Mead, New
24 Jersey.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Michelle Gorden Latour,
28 Assistant Director; Lindsay M.
29 Murphy, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 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 DENIED.
5 Petitioner Zhiyun Thang, a native and citizen of the
6 People’s Republic of China, seeks review of an April 14,
7 2010, order of the BIA affirming the May 2, 2008, decision
8 of Immigration Judge (“IJ”) Annette S. Elstein, denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Zhiyun
11 Thang, No. A094 798 077 (B.I.A. Apr. 14, 2010), af’g No.
12 A094 798 077 (Immig. Ct. N.Y. City May 2, 2008). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history of the case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
20 510, 513 (2d Cir. 2009).
21 The BIA reasonably concluded that Thang failed to
22 demonstrate past persecution or a well-founded fear of
2
1 future persecution. As the BIA determined, Thang is not
2 eligible, as a matter of law, for asylum based on his wife’s
3 forced abortion. See Shi Liang Lin v. U.S. Dep’t. of
4 Justice, 494 F.3d 296, 308 (2d Cir. 2007) (en banc); see
5 also Gui Yin Liu v. INS, 508 F.3d 716, 723 (2d Cir. 2007).
6 As Thang did not assert any other incidents of past
7 persecution, he was not entitled to the presumption of a
8 well-founded fear of future persecution. See 8 C.F.R.
9 § 1208.13(b)(1).
10 Substantial evidence also supports the BIA’s
11 determination that Thang failed to establish a well-founded
12 fear of persecution because he and his wife wanted more
13 children. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 158-
14 68 (2d Cir. 2008); see also Ramsameachire v. Ashcroft, 357
15 F.3d 169, 178 (2d Cir. 2004) (holding that absent past
16 persecution, an alien can demonstrate eligibility for asylum
17 based on a well-founded fear of future persecution by
18 demonstrating that he or she subjectively fears persecution
19 and that this fear is objectively reasonable). Indeed, the
20 BIA reasonably found that whether Thang and his wife will
21 have additional children in China is speculative. See Jian
22 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding
3
1 that, absent solid support in the record for the
2 petitioner’s assertion that he would be subjected to
3 persecution, his fear was “speculative at best”).
4 Additionally, the State Department’s Profile on Asylum
5 Claims and Country Conditions Report and the 2006 Country
6 Report on Human Rights Practices both provide that, although
7 forced sterilizations and fines are imposed on individuals
8 who violate the family planning policy, policy enforcement
9 varies by region, and there is no evidence in the record to
10 establish how the policy is enforced in Thang’s home region.
11 Thus, Thang has failed to establish that the BIA erred in
12 concluding that he did not demonstrate his eligibility for
13 asylum based on his and his wife’s desire to have more
14 children.
15 The BIA also reasonably concluded that Thang did not
16 demonstrate a possibility of future persecution based on his
17 application for asylum in the United States, as the record
18 does not support Thang’s claim that the confidentiality of
19 his asylum proceedings was breeched. Although the record
20 shows that an agent at the Office of the American Consulate
21 General in Guangzhou, China, made telephone inquiries as to
22 whether the doctor listed on the abortion certificate was
4
1 employed at the Lian Jiang Township Hospital, there was no
2 evidence to support a finding that the hospital officials
3 were informed that the inquiry was made in connection with
4 Thang’s asylum application or that they were given Thang’s
5 name. Furthermore, the agent signed a statement indicating
6 that she was aware of the confidentiality provisions
7 regarding asylum cases and affirming that the nature of her
8 investigation was not disclosed to any foreign authorities.
9 Given this evidence and the fact that Thang did not present
10 any evidence to the contrary, the agency reasonably found
11 that he failed to establish a well-founded fear of
12 persecution on that basis.
13 Because Thang was unable to show the objective
14 likelihood of persecution needed to make out an asylum
15 claim, based on either his desire to have more children or
16 his filing of an asylum application in the United States, he
17 was necessarily unable to meet the higher standard required
18 to succeed on a claim for withholding of removal because
19 both claims rested on the same factual predicate. See Paul
20 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
5
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
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