09-4355-ag
Yang v. Holder
BIA
Abrams, IJ
A093 396 935
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 7 th day of May, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 ZHI YANG,
14 Petitioner,
15
16 v. 09-4355-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent. *
21 ______________________________________
22
23
24 FOR PETITIONER: Lee Ratner, Law Offices of Michael
25 Brown, New York, New York.
26
27
*
The Clerk of Court is directed to amend the caption
accordingly.
1 FOR RESPONDENT: Melody K. Eaton, Trial Attorney,
2 Office of Immigration Litigation,
3 for Emily Anne Radford, Assistant
4 Director, Office of Immigration
5 Litigation, and Tony West, Assistant
6 Attorney General, Civil Division,
7 United States Department of Justice,
8 Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner Zhi Yang, a native and citizen of China,
15 seeks review of the September 30, 2009, order of the BIA
16 affirming the February 15, 2008, decision of Immigration
17 Judge (“IJ”) Steven R. Abrams, denying his application for
18 asylum, withholding of removal, and CAT relief. In re Zhi
19 Yang, No. A093 396 935 (B.I.A. Sept. 30, 2009), aff’g No.
20 A093 396 935 (Immig. Ct. N.Y. City Feb. 15, 2008). We
21 assume the parties’ familiarity with the underlying facts
22 and procedural history in this case.
23 Under the circumstances of this case, we review the
24 decision of the IJ as supplemented by the BIA. See Yan Chen
25 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
26 applicable standards of review are well-established. See
2
1 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
2 510, 513 (2d Cir. 2009).
3 The agency reasonably concluded that Yang was not
4 eligible for asylum based on his resistance to China’s
5 family planning policy. See 8 U.S.C. § 1101(a)(42). Yang
6 claims that he engaged in “other resistance to a coercive
7 population control program” and, as a result, suffered harm
8 rising to the level of persecution. Id.; see also Shi Liang
9 Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308, 313 (2d
10 Cir. 2007). The evidence before the IJ established that Yang
11 asked the cadres who removed his wife for sterilization to
12 return later due to his wife’s health. He did not express
13 any objection to her being sterilized once she regained her
14 health, or act in any way that suggests resistance to that
15 outcome. In these circumstances, the agency could reasonably
16 conclude that any harm that Yang suffered was not based on a
17 protected ground and therefore could not support a claim for
18 relief.
19 With respect to Yang’s fear of future persecution, he
20 argues only that he was entitled to a presumptively well-
21 founded fear given his past persecution. However, because
22 we find no error in the agency’s past persecution analysis,
3
1 this argument is unavailing. In light of the foregoing, the
2 BIA reasonably denied Yang’s application for asylum. See
3 8 U.S.C. § 1101(a)(42). Because Yang was unable to
4 establish eligibility for asylum, he was necessarily unable
5 to meet the higher standard required to succeed on a claim
6 for withholding of removal. See Paul v. Gonzales, 444 F.3d
7 148, 156 (2d Cir. 2006). Yang does not challenge the
8 agency’s denial of his application for CAT relief.
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
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