09-4079-ag
Zhang v. Holder
BIA
Holmes-Simmons, IJ
A094 798 076
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 17 th day of September, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12 ______________________________________
13
14 RI DONG ZHANG,
15 Petitioner,
16
17 v. 09-4079-ag
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Gerald Karikari, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, John S. Hogan, Senior
28 Litigation Counsel, Michael C.
29 Heyse, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
1 of Justice, Washington, D.C.
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Petitioner Ri Dong Zhang, a native and citizen of
7 China, seeks review of the September 2, 2009, order of the
8 BIA, affirming the January 8, 2008, decision of Immigration
9 Judge (“IJ”) Theresa Holmes-Simmons denying his application
10 for asylum, withholding of removal, and relief under the
11 Convention Against Torture (“CAT”). In re Ri Dong Zhang,
12 No. A094 798 076 (B.I.A. Sept. 2, 2009), aff’g No. A094 798
13 076 (Immig. Ct. N.Y. City Jan. 8, 2008). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 Under the circumstances of this case, we review the
17 decision of the IJ as supplemented by the BIA. See Yan Chen
18 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
19 applicable standards of review are well-established.
20 See 8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey, 529
21 F.3d 99, 110 (2d Cir. 2008); Corovic v. Mukasey, 519 F.3d
22 90, 95 (2d Cir. 2008).
2
1 Zhang does not contest the agency’s finding that he was
2 not per se eligible for relief based on his wife’s abortion.
3 See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296,
4 309-10 (2d Cir. 2007); Matter of J-S-, 24 I. & N. Dec. 520
5 (AG 2008). Moreover, we find no error in the agency’s
6 denial of Zhang’s applications for relief based on his
7 alleged “resistance” to China’s coercive population control
8 program. See Shi Liang Lin, 494 F.3d at 312-13 (discussing
9 “resistance” claims). As the IJ found, the acts Zhang
10 described –- impregnating his wife, desiring to have more
11 children, and going into hiding –- do not amount to
12 resistance. Id.; Matter of S-L-L-, 24 I. & N. Dec. 1, 10
13 (BIA 2006) overruled on other grounds by Shi Liang Lin v.
14 U.S. Dep't of Justice, 494 F.3d 296, 309-10 (2d Cir. 2007).
15 Indeed, Zhang acknowledged that he never expressed any
16 displeasure to family planning officials about his wife's
17 abortion.
18 The agency also reasonably found that Zhang’s fear of
19 persecution was not well-founded. See Ramsameachire v.
20 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); Diallo v. INS,
21 232 F.3d 279, 284 (2d Cir. 2000). Contrary to Zhang’s
22 argument, the BIA reasonably found that he did not provide
23 evidence demonstrating that “China sterilizes its citizens
3
1 for not having registered marriage or for having a child
2 from an unregistered marriage,” as he presented evidence
3 only of his subjective fear, and did not provide objective
4 evidence that someone in his circumstances would be
5 sterilized if returned to China. See Ramsameachire, 357
6 F.3d at 178; Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d
7 Cir. 2005) (explaining that “objective reasonableness
8 entails a showing that a reasonable person in the
9 petitioner’s circumstances would fear persecution if
10 returned to his native country”); see also Diallo, 232 F.3d
11 at 285-86 (finding that this Court defers to the BIA’s rule
12 that “[w]hile consistent, detailed, and credible testimony
13 may be sufficient to carry the alien’s burden, evidence
14 corroborating his story, or an explanation for its absence,
15 may be required where it would reasonably be expected”).
16 Thus, the agency properly denied Zhang’s application for
17 asylum.
18 As Zhang based his application for asylum and
19 withholding of removal on the same factual predicate, it
20 follows that he failed to meet the higher burden of proof
21 with respect to withholding of removal. See Paul v.
22 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
4
1 Additionally, although we do have jurisdiction to
2 review the IJ’s denial of Zhang’s application for CAT
3 relief, as the BIA considered the IJ’s denial of such
4 relief, see Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d
5 Cir. 2006) (holding that where the BIA addresses issues not
6 raised by a petitioner, those issues are considered
7 exhausted and may be reviewed by this Court), contrary to
8 Zhang’s argument, he fails to point to any specific evidence
9 in support of his claim that he would likely be tortured
10 based on his illegal departure. See Mu Xiang Lin v. U.S.
11 Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005)
12 (finding that a petitioner is not “entitled to CAT
13 protection based solely on the fact that he is part of the
14 large class of persons who have illegally departed China”).
15 Thus, the agency did not err in denying Zhang’s application
16 for CAT relief. Id.
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DENIED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
6