12-4177
Fang v. Holder
BIA
Wright, IJ
A099 540 381
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 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
5