09-4050-ag

Wang v. Holder

BIA

Bukszpan, IJ

A070 529 193

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 1 day of June, two thousand ten. st

PRESENT:

JON O. NEWMAN,

ROBERT A. KATZMANN,

DEBRA ANN LIVINGSTON,

 Circuit Judges.

_________________________________

LISONG WANG,

Petitioner, 

 v. 09-4050-ag

NAC

ERIC H. HOLDER, JR., 

UNITED STATES ATTORNEY GENERAL,

Respondent.

_________________________________

FOR PETITIONER: Lee Ratner, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney General;

David V. Bernal, Assistant Director;

Tiffany Walters Kleinert, Trial

Attorney, Office of Immigration

Litigation, United States Department

of Justice, Washington, D.C.
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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.

Lisong Wang, a native and citizen of the People’s

Republic of China, seeks review of a September 2, 2009, order

of the BIA affirming the July 29, 2008, decision of

Immigration Judge (“IJ”) Joanna Miller Bukszpan, which denied

his application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Lisong

Wang, No. A070 529 193 (B.I.A. Sept. 2, 2009), aff’g No. A070

529 193 (Immig. Ct. N.Y. City July 29, 2008). We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

Under the circumstances of this case, we review the IJ’s

decision as modified by the BIA decision. 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). 

Wang does not challenge the agency’s denial of his family

planning claim. Although he argues that he is entitled to

asylum based on his illegal departure, we have held that the
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possibility that an individual may suffer prosecution for

violating a generally applicable statute does not, by itself,

constitute a valid basis for granting asylum. See Saleh v.

U.S. Dep't of Justice, 962 F.2d 234, 239 (2d Cir. 1992); see

also Matter of Sibrun, 18 I. & N. Dec. 354, 359 (BIA 1983).

Here, although a reasonable factfinder could conclude that

there is a political dimension to the village committee letter

Wang submitted, the record does not compel a finding that the

agency erred in reaching the opposite conclusion. See Jian

Hui Shao v. Mukasey, 546 F.3d 138, 157 (2d. Cir. 2008)

(stating that this Court defers to the BIA’s assessment of

evidence and its ultimate findings of fact); Siewe v.

Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where there are

two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.”). 

Even if Wang had shown the requisite nexus, the BIA did

not err in determining that the record did not establish a

reasonable likelihood that he would be persecuted upon his

return. Indeed, the 2007 State Department Profile of Asylum

Claims and Country Conditions for China, which was included in

the record, indicates that most returnees are detained only

long enough to arrange travel home, that fines are rare, and
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that U.S. officials in China have not confirmed any case of

abuse of persons returned to China after departing illegally.

See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006)

(holding that State Department reports are generally

probative). Thus, the agency reasonably denied Wang’s

application for asylum and withholding of removal. See Paul

v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (noting that a

withholding claim necessarily fails if the applicant is unable

to show the objective likelihood of persecution needed to make

out an asylum claim). Because Wang did not establish a

reasonable likelihood of persecution, he was necessarily

unable to demonstrate a likelihood of torture. See Kyaw Zwar

Tun v. INS, 445 F.3d 554, 567 (2d Cir. 2006) (“torture

requires proof of something more severe than the kind of

treatment that would suffice to prove persecution.”).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

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