Guang Xin Ye v. Holder

09-2293-ag Ye v. Holder BIA Brennan, IJ A097 449 578 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 29 th day of April, two thousand ten. 5 6 PRESENT: 7 ROGER J. MINER, 8 GUIDO CALABRESI, 9 ROBERT A. KATZMANN, 10 Circuit Judges. 11 _______________________________________ 12 13 GUANG XIN YE, 14 Petitioner, 15 16 v. 09-2293-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 ______________________________________ 22 23 24 FOR PETITIONER: John W. Reinhardt, Huntington, N.Y. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; David V. Bernal, Assistant 28 Director; Jennifer Paisner Williams, 29 Senior Litigation Counsel, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 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 Petitioner Guang Xin Ye, a native and citizen of the 6 People’s Republic of China, seeks review of a May 4, 2009 7 order of the BIA affirming the November 8, 2007 decision of 8 Immigration Judge (“IJ”) Noel Brennan denying his 9 application for asylum, withholding of removal, and relief 10 under the Convention Against Torture (“CAT”). In re Guang 11 Xin Ye, No. A097 449 578 (B.I.A. May 4, 2009), aff’g No. 12 A097 449 578 (Immig. Ct. N.Y. City Nov. 8, 2007). We assume 13 the parties’ familiarity with the underlying facts and 14 procedural history in this case. 15 Under the circumstances of this case, this Court 16 reviews the decision of the IJ as supplemented by the BIA. 17 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 18 The applicable standards of review are well-established. We 19 review the agency’s factual findings under the substantial 20 evidence standard, upholding them if they are supported by 21 “reasonable, substantial and probative evidence in the 22 record.” Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 23 2009) (internal quotation marks omitted). We review de novo 2 1 questions of law and the agency’s application of law to 2 undisputed fact. Id. 3 The agency’s finding that Ye failed to establish past 4 persecution on account of any alleged “other resistance” to 5 the family planning policy is supported by the record. Ye 6 is not automatically eligible for refugee status based on 7 his wife’s forced abortion. See Shi Liang Lin v. U.S. Dep’t 8 of Justice, 494 F.3d 296, 309–10 (2d Cir. 2007). Instead, 9 he must demonstrate that he engaged in resistance to a 10 coercive population control program and suffered past 11 persecution or has a well-founded fear of future persecution 12 on account of such resistance. See id. 13 The agency reasonably found that Ye’s testimony that he 14 was threatened with sterilization failed to establish that 15 he suffered past persecution on account of any such 16 resistance. See Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 17 408, 412 (2d Cir. 2006) (noting that “[t]his Court, and 18 others, previously have rejected . . . claims [that] 19 ‘unfulfilled’ threats” constitute persecution). The agency 20 also reasonably found that any fear Ye had of returning to 21 China, including his fear of the repercussions should he 22 have more children in the future, was too speculative to 23 merit relief. See Jian Xing Huang v. I.N.S., 421 F.3d 125, 3 1 129 (2d Cir. 2005). Accordingly, we need not reach Ye’s 2 argument that he resisted the policy because even if he did, 3 he was not persecuted and does not have a well-founded fear 4 of future persecution as a result. See Xia Fan Huang v. 5 Holder, 591 F.3d 124, 130 (2d Cir. 2010). 6 Because Ye was unable to meet his burden for asylum, he 7 necessarily failed to meet the higher burden required for 8 withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 9 156 (2d Cir. 2006). Ye has waived any challenge to the 10 agency’s denial of CAT relief. See Yueqing Zhang v. 11 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7. 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of 14 removal that the Court previously granted in this petition 15 is VACATED, and any pending motion for a stay of removal in 16 this petition is DISMISSED as moot. Any pending request for 17 oral argument in this petition is DENIED in accordance with 18 Federal Rule of Appellate Procedure 34(a)(2), and Second 19 Circuit Local Rule 34.1(b). 20 21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 23 24 25 4