Zhe Xing Fang v. Holder

12-4177
Fang v. Holder
BIA
Wright, IJ
A099 540 381
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 12th day of March, two thousand fourteen.

PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DEBRA ANN LIVINGSTON,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________

ZHE XING FANG,
Petitioner,

v. 12-4177
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________

FOR PETITIONER: Ramesh K. Shrestha, New York, N.Y.

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Richard M. Evans, Assistant
Director; Nancy E. Frieman, Senior
Litigation Counsel; Zorba C. Leslie,
Law Clerk, Office of Immigration
Litigation, 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.

Petitioner Zhe Xing Fang, a native and citizen of

China, seeks review of the September 21, 2012, decision of

the BIA affirming an August 30, 2011, decision of an

Immigration Judge (“IJ”), denying his application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Zhe Xing Fang,

No. A099 540 381 (B.I.A. Sept. 21, 2012), aff’g No. A099 540

381 (Immig. Ct. N.Y. City Aug. 30, 2011). We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA. See Xue Hong Yang

v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

The applicable standards of review are well established.

See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

F.3d 510, 513 (2d Cir. 2009).

2
In order to qualify for asylum or withholding of

removal, Fang was required to demonstrate that: (1) he

engaged in resistance to China’s family planning policies;

and (2) he suffered harm rising to the level of persecution

or had a well-founded fear or likelihood of suffering such

harm as a direct result of his resistance.

See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296,

313 (2d Cir. 2007). Contrary to Fang’s contention, the BIA

reasonably determined that impregnating his then-girlfriend

did not constitute resistance, id. at 313, and Fang does not

contend that he engaged in any other act of resistance

before authorities detained and fined him.

Even assuming that Fang’s confrontation with family

planning officials, several years after his detention,

constituted resistance he did not establish that he was

subjected to persecution on account of this resistance.

Rather, he testified that the police were called to arrest

him, but he hid at a friend’s house, and that he remained in

China, unharmed, for more than one year after this incident.

One unsuccessful attempt to arrest him does not rise to the

level of persecution. See Ivanishvili v. U.S. Dep’t of

Justice, 433 F.3d 332, 342 (2d Cir. 2006).

3
Fang also contends that the BIA engaged in improper

fact-finding in concluding, contrary to the IJ, that his

detention and fine were not on account of his resistance to

the family planning policies. But whether Fang established

“other resistance” is a question of law, and the BIA relied

only on facts found by the IJ. See 8 C.F.R. §

1003.1(d)(3)(ii) (providing that BIA reviews questions of

law de novo); cf. Hui Lin Huang v. Holder, 677 F.3d 130, 135

(2d Cir. 2012) (“The BIA . . . is on sound ground in its

view that de novo review applies to the ultimate question of

whether the applicant has sustained her burden to establish

that her subjective fear of persecution is objectively

reasonable.”).

The agency also reasonably concluded that Fang failed

to establish a well-founded fear of future persecution. See

Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005)

(holding that absent solid support in the record for the

petitioner’s assertion that he would be persecuted, his fear

was “speculative at best”). In making this determination,

the agency noted that Fang’s wife remained in China

unharmed, he alleged he was now permitted under the family

planning policy to have a second child, and Chinese

4
officials were not looking for him. See Melgar de Torres v.

Reno, 191 F.3d 307, 313 (2d Cir. 1999) (determining that

petitioner’s fear of future persecution was diminished when

similarly-situated relatives continued to live in

petitioner’s native country without harm).

Finally, because the agency did not err in finding that

Fang failed to demonstrate either past persecution or a

well-founded fear of persecution, it reasonably denied him

asylum, withholding of removal, and CAT relief, as the

claims were all based on the same factual predicate. See

Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk