09-4397-ag
Wang v. Holder
BIA
Vomacka, IJ
A099 927 182
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 2 nd day of June, two thousand ten.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 YONGFANG WANG,
14 Petitioner,
15
16 v. 09-4397-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Weishan Wang, Capital Law Group,
24 LLP, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Jamie M. Dowd, Senior
28 Litigation Counsel; Bernard A.
29 Joseph, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
33
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 Yongfang Wang, a native and citizen of the People’s
6 Republic of China, seeks review of a September 28, 2009
7 order of the BIA affirming the February 8, 2008 decision of
8 Immigration Judge (“IJ”) Alan A. Vomacka, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re
11 Yongfang Wang, No. A099 927 182 (B.I.A. Sept. 28, 2009),
12 aff’g No. A099 927 182 (Immig. Ct. N.Y. City Feb. 8, 2008).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Because the BIA’s decision did not address the IJ’s
16 adverse credibility determination, we “assume, but do not
17 determine” Wang’s credibility in assessing whether the BIA
18 correctly upheld the IJ’s determination that Wang failed to
19 meet his burden of proof. See Yan Chen v. Gonzales, 417 F.3d
20 268, 271 (2d Cir. 2005). We review the denial of an
21 application for asylum under the “substantial evidence”
22 standard. Wu Biao Chen v. I.N.S., 344 F.3d 272, 275 (2d
23 Cir. 2003). We will uphold the agency’s factual findings so
2
1 long as they are supported by “reasonable, substantial, and
2 probative” evidence in the record, and reverse an agency’s
3 denial of relief only if “no reasonable fact-finder could
4 have failed to find . . . past persecution or fear of future
5 persecution.” Id.
6 Wang applied for relief based on a fear of future
7 persecution due to his resistance to China’s one-child
8 policy. He states that he and his wife attempted to violate
9 the one-child policy. Wang’s wife had a private doctor
10 remove an IUD that the government had implanted after the
11 birth of their first child. Soon after, she became pregnant
12 and Wang took her to his sister’s house to hide her. After
13 his wife failed to attend a mandatory birth control
14 examination, family planning officials found her and forced
15 her to undergo an abortion. Three months after the
16 procedure, Wang’s wife was forced to have another IUD
17 inserted. Wang did not allege any contact between family
18 planning officials and him or his wife after this second
19 forced IUD procedure.
20 A spouse of someone who was forced to undergo an
21 abortion or sterilization is not automatically considered a
22 “refugee.” Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d
3
1 296, 309-12 (2d Cir. 2007)(en banc); see 8 U.S.C.
2 § 1101(a)(42). To qualify for “refugee” status, a spouse
3 must demonstrate “‘other resistance to a coercive population
4 control program,’ or ‘a well founded fear that he or she
5 will be subject to persecution for such resistance.’” Id.
6 at 309-10, quoting 8 U.S.C. § 1101(a)(42) (ellipses
7 omitted).
8 On appeal, Wang claims that the record evidence compels
9 the conclusion that he has a well founded fear of
10 persecution based on the requisite “other resistance.”
11 Contrary to Wang’s assertion, the agency reasonably
12 determined that, even assuming that he engaged in “other
13 resistance” to China’s family planning policy, he failed to
14 demonstrate a well-founded fear of persecution on account of
15 that resistance. The agency found that Wang failed to: (1)
16 demonstrate that he “was threatened by birth control policy
17 enforcers as a result of demonstrating actual resistance to
18 birth control policies”; or (2) point to any record evidence
19 demonstrating a reasonable possibility that he would be
20 sterilized or otherwise persecuted upon his return to China.
21 Wang’s citation to a 2007 U.S. State Department Country
22 Profile for China failed to establish that he had an
4
1 objectively well-founded fear of future persecution, and he
2 provided no other evidence that would compel a factfinder to
3 conclude that such a well-founded fear of future persecution
4 existed. The agency’s finding that Wang did not have an
5 objectively reasonable fear of persecution was supported by
6 substantial evidence. See Ramsameachire v. Ashcroft, 357
7 F.3d 169, 178 (2d Cir. 2004) (requiring a petitioner to
8 establish that he subjectively fears persecution and that
9 the fear be objectively reasonable).
10 Because Wang was unable to carry his burden of proof
11 for asylum, he was necessarily unable to meet the higher
12 standard required to succeed on a claim for withholding of
13 removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
14 2006). Wang does not challenge the agency’s denial of his
15 CAT claim before this Court.
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
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