Linying Wang v. Holder

09-3597-ag Wang v. Holder BIA Tadal, IJ A071 498 449 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 3 rd day of June, two thousand ten. 5 6 PRESENT: 7 JOSEPH M. McLAUGHLIN, 8 RICHARD C. WESLEY, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _______________________________________ 12 13 LINYING WANG, 14 Petitioner, 15 16 v. 09-3597-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Scott E. Bratton, Cleveland, Ohio. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; Aviva L. Poczter, Senior 27 Litigation Counsel; Aric A. 28 Anderson, Trial Attorney, Office of 29 Immigration Litigation, United 1 States Department of Justice, 2 Washington, D.C. 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED, that the petition for review 7 is DENIED. 8 Linying Wang, a native and citizen of the People’s 9 Republic of China, seeks review of a July 30, 2009, order of 10 the BIA affirming the November 6, 1998, decision of 11 Immigration Judge (“IJ”) Mirlande Tadal, which denied her 12 application for asylum and withholding of removal. In re 13 Linying Wang, No. A071 498 449 (B.I.A. July 30, 2009), aff’g 14 No. A071 498 449 (Immig. Ct. N.Y. City Nov. 6, 1998). We 15 assume the parties’ familiarity with the underlying facts 16 and procedural history in this case. 17 Under the circumstances of this case, we review the 18 IJ’s decision as supplemented by the BIA’s decision. See 19 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 20 The applicable standards of review are well established. 21 See 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep't 22 of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). 23 We find no error in the BIA’s conclusion that Wang 24 failed to demonstrate a well-founded fear of persecution 2 1 through forced sterilization based on the birth of her four 2 children. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 148- 3 49 (2d Cir. 2008) (affirming the BIA’s three-part test 4 requiring an applicant claiming fear of persecution under 5 China’s population control policy to demonstrate: (1) the 6 existence of a family planning policy in her local province, 7 municipality, or other locally defined area; (2) that she 8 has violated this family planning policy; and (3) that the 9 violation would be punished in the local area in a way that 10 would give rise to an objective fear of future persecution). 11 The State Department Country Profile for China, which Wang 12 cites in support of her claim, specifically states that 13 officials in Wang’s native Zhejiang province do not resort 14 to force in response to violations of China’s population 15 control policy, and further indicates that women in Zhejiang 16 province are allowed to have “two, three or more 17 unauthorized children.” See Matter of C-C-, 23 I. & N. Dec. 18 899, 901-02 (BIA 2006) . 19 Moreover, to the extent Wang submitted to the BIA 20 evidence regarding conditions in Fujian Province, we have 21 previously considered that evidence, and have agreed with 22 the BIA that it is insufficient to demonstrate an 3 1 objectively reasonable fear of forced sterilization. See 2 Jian Hui Shao, 546 F.3d at 169-71; see also Wei Guang Wang 3 v. BIA, 437 F.3d 270, 275 (2d Cir. 2006). 4 Moreover, we decline to consider Wang’s unexhausted 5 challenge to the BIA’s finding that her fear of forcible 6 sterilization was not objectively reasonable because she was 7 able to relocate within China. Wang failed to exhaust this 8 challenge because she did not raise it on appeal to the BIA, 9 despite it being the sole basis for the IJ’s denial of her 10 asylum application. See Foster v. I.N.S., 376 F.3d 75, 78 11 (2d Cir. 2004) (requiring petitioners to raise to the BIA 12 the specific issues later raised in this Court); Lin Zhong 13 v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 14 2007) ; see also Theodoropoulos v. I.N.S., 358 F.3d 162, 171 15 (2d Cir. 2004). Finally, because Wang fails to present any 16 meaningful challenge to the agency’s denial of her 17 application for withholding of removal, we deem any such 18 argument waived. See Yueqing Zhang v. Gonzales, 426 F.3d 19 540, 541 n.1, 545 n.7 (2d Cir. 2005). 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 4 1 is VACATED, and any pending motion for a stay of removal in 2 this petition is DISMISSED as moot. Any pending request for 3 oral argument in this petition is DENIED in accordance with 4 Federal Rule of Appellate Procedure 34(a)(2), and Second 5 Circuit Local Rule 34.1(b). 6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk 8 9 10 5