09-5251-ag
Zhu v. Holder
BIA
Lamb, IJ
A097 660 552
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 20 th day of December, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 ______________________________________
12
13 MING ZHU,
14 Petitioner,
15
16 v. 09-5251-ag
17 NAC
18 ERIC H. HOLDER, JR.,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Blair T. O’Connor,
27 Assistant Director; Don G. Scroggin,
28 Trial Attorney, Office of
29 Immigration Litigation; U.S.
30 Department of Justice, Washington,
31 D.C.
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 Ming Zhu, a native and citizen of the People’s Republic
6 of China, seeks review of an November 30, 2009, decision of
7 the BIA affirming the decision of Immigration Judge (“IJ”)
8 Elizabeth A. Lamb, which denied Zhu’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Ming Zhu, No.
11 A097 660 552 (B.I.A. Nov. 30, 2009), aff’g No. A097 660 552
12 (Immig. Ct. N.Y. City March 25, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we review both
16 the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237(2d Cir.
18 2008). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic
20 v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey,
21 529 F.3d 99, 110 (2d Cir. 2008).
22 The agency did not err in finding that Zhu had failed
2
1 to demonstrate his eligibility for asylum. The agency
2 correctly relied on binding precedent in finding that the
3 alleged forced sterilization of Zhu’s wife did not render
4 Zhu per se eligible for asylum. See Shi Liang Lin v. U.S.
5 Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (en banc)
6 (holding that an individual is not per se eligible for
7 asylum based on the forced abortion or sterilization of a
8 spouse or partner because “applicants can become candidates
9 for asylum relief only based on persecution that they
10 themselves have suffered or must suffer”). Similarly, the
11 agency did not err in finding that conceiving a second child
12 with his wife did not constitute an act of “other
13 resistance” to China’s family planning policy so as to
14 render Zhu eligible for asylum. See Matter of S-L-L-, 24 I.
15 & N. Dec. 1 (BIA 2006). Because Zhu failed to demonstrate
16 “other resistance,” we need not reach the issue of the fine;
17 the fine cannot be “persecution” within the meaning of the
18 Act, because it was not imposed on account of Zhu’s “other
19 resistance.” See 8 U.S.C.A. § 1158(b)(1)(B)(i).
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
3
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
4