08-4682-ag
Wu v. Holder
BIA
Mulligan, IJ
A 099 568 227
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 18 th day of May, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 XIU MING WU,
14 Petitioner,
15
16 v. 08-4682-ag
17 NAC
18 ERIC H. HOLDER, JR., 1 U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Jan Potemkin, New York, New York.
1
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.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Michelle G. Latour,
3 Assistant Director ; Michele Y.F.
4 Sarko, Trial Attorney, Office of
5 Immigration Litigation, Washington
6 D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Xiu Ming Wu, a native and citizen of the
13 People’s Republic of China, seeks review of the August 28,
14 2008, order of the BIA affirming the June 15, 2006, decision
15 of Immigration Judge (“IJ”) Thomas J. Mulligan denying his
16 application for asylum, withholding of removal, and relief
17 under the Convention Against Torture (“CAT”). In re Xiu
18 Ming Wu, No. A 099 568 227 (B.I.A. Aug. 28, 2008), aff’g No.
19 A 099 568 227 (Immig. Ct. N.Y. City June 15, 2006). We
20 assume the parties’ familiarity with the underlying facts
21 and procedural history in this case.
22 Under the circumstances of this case, we review the
23 IJ’s decision as modified by the BIA. See Xue Hong Yang v.
24 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
25 The applicable standards of review are well-established.
26 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
2
1 F.3d 510, 513 (2d Cir. 2009).
2 As a preliminary matter, Wu has waived any challenge to
3 the BIA’s findings that he failed to establish: (1) past
4 persecution; and (2) his eligibility for CAT relief. See
5 Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir.
6 2005) (issues not sufficiently argued in the briefs are
7 considered waived and normally will not be addressed on
8 appeal in the absence of manifest injustice). In his
9 counseled brief, Wu devotes no more than a “single
10 conclusory sentence,” to these claims. Id.
11 With respect to Wu’s claimed fear of persecution if
12 returned to China on account of the birth of his three
13 children, the BIA did not err in finding that his fear was
14 not objectively reasonable. We have previously reviewed the
15 agency’s consideration of evidence similar to that which Wu
16 submitted and have found no error in its conclusion that
17 such evidence is insufficient to establish an alien’s prima
18 facie eligibility for relief. See Jian Hui Shao v. Mukasey,
19 546 F.3d 138, 164-72 (2d Cir. 2008); see also Wei Guang Wang
20 v. BIA, 437 F.3d 270, 275 (2d Cir. 2006). Although Wu also
21 argues that he credibly testified that he was “sought for
22 arrest” on account of his resistance to the family planning
3
1 policy by helping his wife hide from the authorities, that
2 argument misrepresents the record. Wu merely testified that
3 he left China because he was “afraid that the government
4 would arrest him” for violating the policy. He presented no
5 evidence that the Chinese authorities were actually seeking
6 to arrest him. Furthermore, as the BIA noted, Wu claims
7 that his wife has already been sterilized and that the fine
8 for violating the family planning policy has been paid; Wu
9 presented no evidence that the Chinese government is seeking
10 to impose any further punishment on either him or his wife.
11 See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
12 (a fear is not objectively reasonable if it lacks “solid
13 support” in the record and is merely “speculative at best”).
14
15 Finally, Wu failed to establish that any punishment
16 imposed on him for “fleeing from China” would rise to the
17 level of persecution. See Mu Xiang Lin v. U.S. Dep’t of
18 Justice, 432 F.3d 156, 159-60 (2d Cir. 2005); Mu-Xing Wang
19 v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir. 2003).
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
23 is VACATED, and any pending motion for a stay of removal in
4
1 this petition is DISMISSED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2), and Second
4 Circuit Local Rule 34.1(b).
5
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
10
5