Bo Yang v. Holder

10-2965-ag Yang v. Holder BIA Chew, IJ A077 322 698 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 23rd day of August, two thousand eleven. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 GERARD E. LYNCH, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _______________________________________ 12 13 BO YANG, AKA BUO YANG, 14 Petitioner, 15 16 v. 10-2965-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL 20 Respondent. 21 ______________________________________ 22 23 FOR PETITIONER: Gerald Karikari, New York, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; Carl H. McIntyre, Jr., 27 Assistant Director; Christina J. 28 Martin, Trial Attorney, Office of 29 Immigration Litigation, Civil 30 Division, United States Department 31 of Justice, Washington, 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 Petitioner Bo Yang, a native and citizen of China, 6 seeks review of a June 24, 2010, order of the BIA affirming 7 the December 17, 2007, decision of Immigration Judge (“IJ”) 8 George T. Chew denying his applications for asylum, 9 withholding of removal, and relief under the Convention 10 Against Torture (“CAT”). In re Bo Yang, No. A077 322 698 11 (B.I.A. June 24, 2010), aff’g No. A077 322 698 (Immig. Ct. 12 N.Y.C. Dec. 17, 2007). We assume the parties’ familiarity 13 with the underlying facts and procedural history in this 14 case. 15 Under the circumstances of this case, we review both 16 the BIA’s and the IJ’s decisions. See Zaman v. Mukasey, 514 17 F.3d 233, 237 (2d Cir. 2008). The applicable standards of 18 review are well-established. See 8 U.S.C. § 1252(b)(4)(B); 19 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 20 Yang contends that he established his eligibility for 21 asylum and withholding of removal based on his mistreatment 22 following his girlfriend’s abortions under China’s family 2 1 planning policy and his fear of future persecution due to 2 the fact that if returned to China he and his girlfriend 3 will have two children in violation of the policy. 4 The agency reasonably concluded that any past 5 mistreatment Zhang suffered did not establish his 6 eligibility for asylum or withholding of removal as he did 7 not establish it was on account of a protected ground. See 8 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004) 9 (explaining that an applicant for asylum or withholding of 10 removal must show a nexus between his persecution and a 11 protected ground set forth in the Immigration and 12 Nationality Act); 8 U.S.C. § 1101(a)(42) (providing that a 13 person “who has been persecuted . . . for other resistance 14 to a coercive population control program, shall be deemed to 15 have been persecuted on account of political opinion”). The 16 agency reasonably concluded that Yang’s impregnation of his 17 girlfriend in violation of the family planning policy, 18 alone, did not establish that he was engaged in “other 19 resistance” to the policy. See Shi Liang Lin v. U.S. Dep’t 20 of Justice, 494 F.3d 296, 313 (2d Cir. 2007) (en banc) 21 (explaining that individuals whose spouses have become 22 pregnant in violation of the family planning policy have not 3 1 through that pregnancy demonstrated their own resistance to 2 China’s coercive population control measures used to enforce 3 the policy); see also Zhang v. Ashcroft, 395 F.3d 531, 532 4 (5th Cir. 2004) (“[M]erely impregnating one’s girlfriend is 5 not alone an act of ‘resistance.’”). Yang’s contention in 6 his brief that he impregnated his girlfriend in order to 7 resist the family planning policy does not compel a contrary 8 conclusion. See 8 U.S.C. § 1252(b)(4)(B). 9 Yang contends that he has a well-founded fear of 10 persecution because, if returned to China and reunited with 11 his girlfriend, they will have two children in violation of 12 the family planning policy. Yang did not raise this basis 13 for relief before the agency. Accordingly, we will not 14 address the issue. See Lin Zhong v. U.S. Dep’t of Justice, 15 480 F.3d 104, 107 n.1, 122 (2d Cir. 2007) (reaffirming that 16 this Court “may consider only those issues that formed the 17 basis for [the BIA’s] decision”). 18 Finally, the agency’s denial of Yang’s application for 19 CAT relief is supported by substantial evidence. The agency 20 reasonably found that Yang did not establish that he would 21 be tortured based on his past violation of the family 22 planning policy as his girlfriend, who also violated the 4 1 policy and remained in China, had not been tortured. See 2 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999). 3 And the agency reasonably concluded that Yang’s contention 4 that he would be tortured because he left China illegally 5 did not establish a likelihood of torture as he did not 6 submit any particularized evidence supporting that claim. 7 See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 8 157-60 (2d Cir. 2005). 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our review, any stay of 11 removal that the Court previously granted in this petition 12 is VACATED, and any pending motion for a stay of removal in 13 this petition is DISMISSED as moot. Any pending request for 14 oral argument in this petition is DENIED in accordance with 15 Federal Rule of Appellate Procedure 34(a)(2), and Second 16 Circuit Local Rule 34.1(b). 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20 5