Wei Ye v. Holder

09-2940-ag
Ye v. Holder
BIA
Hom, IJ
A076 505 791
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 30 th day of August, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 JOSÉ A. CABRANES,
11 Circuit Judges.
12 _____________________________________
13
14 WEI YE,
15 Petitioner,
16
17 v. 09-2940-ag
18 NAC
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20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
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25 FOR PETITIONER: Richard Tarzia,
26 Belle Mead, New Jersey.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Richard M. Evans, Assistant
30 Director; Sharon M. Clay, Trial
31 Attorney, Office of Immigration
32 Litigation, United States Department
33 of Justice, 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 Wei Ye, a native and citizen of the People’s Republic
6 of China, seeks review of a June 12, 2009, order of the BIA,
7 affirming the August 27, 2007, decision of Immigration Judge
8 (“IJ”) Sandy K. Hom, which denied his application for
9 asylum, withholding of removal and relief under the
10 Convention Against Torture (“CAT”). In re Wei Ye, No. A076
11 505 791 (B.I.A. June 12, 2009), aff’g No. A076 505 791
12 (Immig. Ct. N.Y. City Aug. 27, 2007). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history.
15 In the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);
20 Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d
21 Cir. 2007).
2
1 I. Falun Gong
2 The agency did not err in finding that Ye failed to
3 meet his burden of establishing his eligibility for relief
4 because he did not provide reasonably available
5 corroboration of his claims. See Kyaw Zwar Tun v. INS, 445
6 F.3d 554, 568 (2d Cir. 2006), Diallo v. INS, 232 F.3d 279,
7 290 (2d Cir. 2000);. Ye does not challenge the agency’s
8 dispositive finding that he failed to adequately corroborate
9 his Falun Gong claim, but instead argues that the agency
10 failed to consider the U.S. Department of State’s Country
11 Report on Human Rights Practices in China for 2006. The
12 agency did not explicitly indicate that it had analyzed the
13 information in the record concerning the treatment of Falun
14 Gong practitioners in China: However, because the agency’s
15 decision was based on the lack of corroboration of Ye’s
16 assertion that he practiced Falun Gong, rather than the
17 treatment of Falun Gong practitioners in general, his
18 argument is inapposite.
19
20 II. Family Planning
21 Ye argues that he suffered past persecution because his
22 wife’s forced abortion prevented him from “being allowed to
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1 enjoy the basic human right of procreating with his wife.”
2 However, an alien is not per se eligible for relief based on
3 a spouse’s forced abortion. See Shi Liang Lin v. U.S. Dep’t
4 of Justice, 494 F.3d 296, 309 (2d Cir. 2007). Moreover,
5 contrary to Ye’s contention that the agency failed to
6 consider his fear of persecution under China’s family
7 planning policy based on his wife’s pregnancy, the BIA
8 reasonably found that Ye “failed to provide reasonably
9 available corroboration to support his claim . . . that he
10 would face persecution based on China’s coercive population
11 control policies.” See Kyaw Zwar Tun, 445 F.3d at 568; see
12 also Jian Hui Shao v. Mukasey, 546 F.3d 138, 161 (2d Cir.
13 2008).
14 Because Ye’s withholding of removal claim was
15 predicated on the same basis as his asylum claim, the
16 agency’s reasonable finding that he had not met his burden
17 of proof with respect to asylum was a sufficient basis to
18 deny both forms of relief. See Paul v. Gonzales, 444 F.3d
19 148, 156 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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