Yi Quan Zheng v. Holder

10-52-ag BIA Zheng v. Holder Schoppert, IJ A099 583 089 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 24th day of February, two thousand eleven. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 ROSEMARY S. POOLER, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 12 _______________________________________ 13 14 YI QUAN ZHENG, 15 Petitioner, 16 17 v. 10-52-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, UNITED STATES 21 DEPARTMENT OF JUSTICE, 22 Respondents. 23 _______________________________________ 24 25 FOR PETITIONER: Dehai Zhang, Flushing, New York. 26 27 FOR RESPONDENTS: Tony West, Assistant Attorney 28 General; Leslie McKay, Assistant 1 Director; Ilissa M. Gould, Attorney, 2 Office of Immigration Litigation, 3 United States Department of Justice, 4 Washington, D.C. 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED, that the petition for review 9 is DENIED. 10 Yi Quan Zheng, a native and citizen of China, seeks 11 review of a December 31, 2009, order of the BIA affirming 12 the March 6, 2008, decision of Immigration Judge (“IJ”) 13 Douglas B. Schoppert, which denied his application for 14 asylum, withholding of removal, and relief under the 15 Convention Against Torture (“CAT”). In re Zheng, No. A099 16 583 089 (B.I.A. Dec. 31, 2009), aff’g No. A099 583 089 17 (Immig. Ct. N.Y. City Mar. 6, 2008). We assume the parties’ 18 familiarity with the underlying facts and procedural history 19 in this case. 20 Under the circumstances of this case, we review the 21 decision of the IJ as supplemented by the BIA. See Yan Chen 22 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 23 applicable standards of review are well-established. See 24 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); 25 Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007). The 2 1 only issue before us is whether the agency erred in denying 2 Zheng’s application for asylum, as Zheng has not challenged 3 the denial of withholding of removal and CAT relief before 4 this Court. 5 In Shi Liang Lin we determined that, under 8 U.S.C. 6 § 1101(a)(42), 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.” Shi Liang Lin v. 11 U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir. 2007); see 12 also Matter of J-S-, 24 I.&.N. Dec. 520, 536-37 (A.G. 2008) 13 (adopting this Court’s holding in Shi Liang Lin). As the 14 BIA noted, Zheng does not dispute that he is ineligible for 15 asylum based on his wife’s sterilization under Shi Liang 16 Lin, but rather argues that the agency’s application of the 17 standard articulated in Shi Liang Lin and Matter of J-S- 18 should not be applied retroactively. Zheng further contends 19 that the agency’s application of the Shi Liang Lin decision 20 to his case violated his due process rights, and that this 21 error warrants remand to the agency for a nunc pro tunc 22 exercise of discretion. The purpose of the nunc pro tunc 23 doctrine is “to return aliens to the position in which they 24 would been, but for a significant error in their immigration 3 1 proceedings.” Edwards v. INS, 393 F.3d 299, 308-09 (2d Cir. 2 2004). As a general rule, the BIA applies the law in effect 3 at the time it enters its decision. See 8 C.F.R. 4 § 1003.1(d)(3)(ii); c.f. NLRB v. Coca-Cola Bottling Co., 55 5 F.3d 74, 78 (2d Cir. 1995). In this case, because we issued 6 Shi Liang Lin prior to the IJ’s decision, the agency’s 7 application of the standard articulated in that case was 8 appropriate. See Shou Wei Jin v. Holder, 572 F.3d 392, 397 9 (7th Cir. 2009); Yu v. U.S. Atty. Gen., 568 F.3d 1328, 1333- 10 34 (11th Cir. 2009). Zheng argues however that his 11 situation is analogous to the situation of the petitioners 12 in INS v. St. Cyr, 533 U.S. 289 (2001), and Edwards, 393 13 F.3d 299, and that he is therefore entitled to a remand for 14 nunc pro tunc relief. In both Edwards and St. Cyr, the 15 applicable statutes changed after petitioners had acted in 16 reliance on the prior versions of the law. Conversely, Shi 17 Liang Lin did not constitute a change in law, but rather 18 interpreted the meaning of 8 U.S.C. § 1101(a)(42). See Shi 19 Liang Lin, 494 F.3d at 308; see also Yu, 568 F.3d at 1333- 20 34. Accordingly, the agency correctly applied Shi Liang Lin 21 to Zheng’s case, and Zheng is not entitled to a remand for 22 nunc pro tunc relief; nor is he eligible for asylum based on 23 his wife’s forced sterilization alone. 24 In the absence of per se persecution based on his 4 1 wife’s sterilization, Zheng must show “other resistance to a 2 coercive population control program” and that he was 3 persecuted as a result of that resistance. Shi Liang Lin, 4 494 F.3d at 309-10. The agency did not err in finding that 5 while Zheng may have engaged in resistance to a coercive 6 population control program, he did not suffer persecution as 7 a result of that resistance. The BIA has defined 8 persecution as a “threat to the life or freedom of, or the 9 infliction of suffering or harm upon, those who differ in a 10 way regarded as offensive.” Matter of Acosta, 19 I. & N. 11 Dec. 211, 222 (BIA 1985), overruled, in part, on other 12 grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); accord 13 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d 14 Cir. 2006). The harm must be sufficiently severe, rising 15 above “mere harassment.” Ivanishvili, 433 F.3d at 341. As 16 the agency noted, Zheng claimed only to have suffered harm 17 when family planning officials came to his house in order to 18 bring his wife to the hospital to be sterilized. When he 19 tried to run to his wife and stop the officials, they 20 grabbed him and forced him to the ground. The officials 21 held him on the ground until other officials left with his 22 wife, at which point Zheng was released. The family 23 planning officials did not harm Zheng in any other way, and 24 he was never fined by the government, nor did he suffer any 5 1 other economic repercussions as a result of his resistance. 2 Thus, because the incident at Zheng’s house constituted the 3 entirety of the harm he suffered, the agency did not err in 4 finding that it did not amount to persecution. See 5 Ivanishvili, 433 F.3d at 341; see also Beskovic v. Gonzales, 6 467 F.3d 223, 226 (2d Cir. 2006). Accordingly, the agency 7 did not err in denying Zheng’s application for asylum. See 8 8 C.F.R. § 1208.16(b). 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our review, the pending motion 11 for a stay of removal in this petition is DISMISSED as moot. 12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14 6