Zi Yuan Zhang v. Holder

08-6034-ag
Zhang v. Holder
BIA
A077 957 646
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 26 th day of March, two thousand ten.
PRESENT:
GUIDO CALABRESI,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_________________________________________
ZI YUAN ZHANG,
Petitioner,
v. 08-6034-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, *
Respondent.
_________________________________________
FOR PETITIONER: Alexander Kwok-Ho Yu,
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; James A. Hunolt, Senior
Litigation Counsel; Christopher P.
McGreal, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC
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.
Zi Yuan Zhang, a native and citizen of the People’s
Republic of China, seeks review of a November 10, 2008,
order of the BIA, affirming the August 8, 2003, decision of
Immigration Judge (“IJ”) Terry A. Bain, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Zi Yuan
Zhang, No. A077 957 646 (B.I.A. Nov. 10, 2008), aff’g No.
A077 957 646 (Immig. Ct. N.Y. City Aug. 8, 2003). 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. See Xue Hong
Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
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2005). The applicable standards of review are well-
established. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110
(2d Cir. 2008); Manzur v. U.S. Dep’t of Homeland Sec., 494
F.3d 281, 289 (2d Cir. 2007).
Substantial evidence supports the agency’s denial of
Zhang’s application for relief. As the BIA had done, we
also assume Zhang to be credible for purposes of this
analysis. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72
(2d Cir. 2005). We therefore have no occasion to consider
Zhang’s challenge to the IJ’s adverse credibility
determination.
Contrary to Zhang’s argument, the BIA did not exceed
its authority under the regulations in determining that he
did not establish his eligibility for relief. Rather than
conducting impermissible fact finding, the BIA applied the
appropriate legal standard to an uncontested set of facts.
See 8 C.F.R. § 1003.1(d)(3)(ii); Matter of A-S-B-, 24 I. &
N. Dec. 493, 497 (BIA 2008).
Zhang further argues that the BIA erred in finding that
he was not eligible for relief on account of his “other
resistance” to China’s family planning policies, because his
failure to turn in his girlfriend for a forced abortion
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constituted such resistance. Even if Zhang’s conduct
constituted “other resistance,” the BIA’s determination that
he was not eligible for relief because he was not persecuted
on account of that resistance was not in error. See Shi
Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 313 (2d
Cir. 2007). Because the only harm Zhang claimed to have
suffered on account of his resistance to the family planning
policies was that family planning officials told him he
would be sterilized, the BIA did not err in its
determination that this unfulfilled threat did not amount to
past persecution. See Gui Ci Pan v. U.S. Att’y Gen., 449
F.3d 408, 412-13 (2d Cir. 2006). Zhang did not provide any
alternative basis for his fear of future persecution. Thus,
the BIA did not err in finding that he failed to establish
his eligibility for asylum and withholding of removal. See
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
Finally, because Zhang’s CAT claim was based on the
same factual predicate as his asylum and withholding claims,
the BIA’s finding that he had not met his burden of proof
was a sufficient basis to deny Zhang’s claim for asylum,
withholding, and CAT relief. See Paul v. Gonzales, 444 F.3d
148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
4
Justice, 426 F.3d 520, 523 (2d Cir. 2005).
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.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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