10-2983-ag
Ou v. Holder
BIA
Holmes-Simmons, IJ
A099 928 392
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.
At a stated term of the United States Court of
Appeals for the Second Circuit, held at the Daniel Patrick
Moynihan United States Courthouse, 500 Pearl Street, in the
City of New York, on the 14th day of July, two thousand
eleven.
PRESENT:
ROBERT A. KATZMANN,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
______________________________________
SHOU CHUN OU,
Petitioner,
10-2983-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Norman Kwai Wing Wong, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Anthony C. Payne, Senior
Litigation Counsel; Lindsay E.
Williams, Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review
of a Board of Immigration Appeals ("BIA") decision, it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED in part and GRANTED in part.
Petitioner, Shou Chun Ou, a native and citizen of
China, seeks review of a July 8, 2010, decision of the BIA
affirming the September 18, 2008, decision of Immigration
Judge ("IJ") Theresa Holmes-Simmons, denying his application
for asylum, withholding of removal, and relief under the
Convention Against Torture ("CAT") and denying his motion to
remand. In re Shou Chun ou, No. A099 928 392 (B.I.A. July
8, 2010), aff'g No. A099 928 392 (Immig. Ct. N.Y. City Sept.
18, 2008). We assume the parties' familiarity with the
underlying facts and procedural history of the case.
Under the circumstances of this case, we have
reviewed both the IJ's and the BIA's opinions "for the sake
of completeness." Zaman v. Mukasey, 514 F.3d 233, 237 (2d
Cir. 2008) (per curiam). The applicable standards of review
are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
2
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009); Li Yong
Cao v. Dep't of Justice, 421 F.3d 149, 156 (2d Cir.2005).
The agency correctly concluded that Ou was not
eligible for relief based solely on his wife's forced
abortion. See Shi Liang Lin v. U.S. Dep't of Justice, 494
F.3d 296, 309-10 (2d Cir. 2007). Nonetheless, even though
he was not per se eligible for relief on that basis, he
could have established his eligibility for relief by
demonstrating that he engaged in "other resistance" to the
family planning policy and that, as a result, he either
suffered past persecution or had a well founded fear of
future persecution. 8 U.S.C. § 1101(a)(42); Shi Liang Lin,
494 F.3d at 309-10.
Even assuming arguendo that Ou had engaged in
"other resistance," the agency reasonably found that Ou did
not suffer past persecution, as he testified that he was
never arrested, beaten, fined, interrogated, sterilized, or
otherwise harmed by Chinese officials, and that he did not
have any interaction with family planning officials from the
time his wife had the abortion until he left China nine
years later. Shi Liang Lin, 494 F.3d at 309-10. The agency
also reasonably found that Ou did not establish a well-
founded fear of future persecution based on the possibility
3
that he would have more children after returning to China,
as this fear was too speculative to establish eligibility
for relief. See Jian Xing Huang v. INS, 421 F.3d 125, 128-
29 (2d Cir. 2005) (per curiam) (holding that, absent "solid
support in the record" for the petitioner's assertion that
he would be subjected to forced sterilization, his fear was
"speculative at best").
With respect to Ou's claims for withholding of
removal and CAT relief based on his purported illegal
departure from China, the agency reasonably concluded that
Ou failed to establish that it was more likely than not that
he would be persecuted or tortured if returned to China.
Because Ou's claim that he would be punished based on his
illegal departure from China was an assertion that he would
be punished under a generally applicable law and not
persecuted on account of a protected ground, he failed to
establish his eligibility for withholding of removal. See
Saleh v. U.S. Dep't of Justice, 962 F.2d 234, 239 (2d Cir.
1992). Also, because Ou primarily relied on human rights
reports and did not present any particularized evidence that
he would be singled out for torture based on his illegal
departure, the agency did not err in finding that Ou failed
to establish his eligibility for CAT relief. See Mu Xiang
4
Lin v. U.S. Dep't of Justice, 432 F.3d 156, 159-60 (2d Cir.
2005); see also Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-
44 (2d Cir. 2003).
In addition, the BIA did not abuse its discretion
in denying Ou’s motion to remand for failure to establish
prima facie eligibility for relief based on his conversion
to Christianity because Ou did not present any evidence that
authorities in China are either aware, or likely to become
aware, of his Christian religion or activities. See
Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005)
(providing that an applicant attempting to reopen his case
based on changed circumstances must "establish prima facie
eligibility for asylum, i.e., 'a realistic chance' that he
will be able to establish eligibility"); Hongsheng Leng v.
Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) ("Put simply, to
establish a well-founded fear of persecution in the absence
of any evidence of past persecution, an alien must make some
showing that authorities in his country of nationality are
either aware of his activities or likely to become aware of
his activities.").
5
The BIA did not, however, expressly consider Ou's
claim for relief under 8 C.F.R. § 208.16(b)(2), which
alleged a pattern or practice of persecution against
Christians or unauthorized church followers in China. See
Mufied v. Mukasey, 508 F.3d 88, 91-93 (2d Cir. 2007). Ou
presented evidence to this effect that the agency appears to
have considered only his claim that he would be singled out
for persecution. Rather than evaluate the evidence and
adjudicate the pattern-or-practice claim ourselves, we think
it is the "the better" course to remand this aspect of Ou's
petition to the BIA. See id. at 93.
For the foregoing reasons, the petition for review
is DENIED in part, GRANTED in part, and REMANDED to the BIA
for further proceedings consistent with this order. As we
have completed our review, any stay of removal that the
Court previously granted in this petition is VACATED, and
any pending motion for a stay of removal in this petition is
DISMISSED as moot.
6
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate
Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
7