11-3305-ag

Zheng v. Holder

BIA

Weisel, IJ

A073 186 973

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

New York, on the 16th 4 day of May, two thousand twelve.

5

6 PRESENT:

7 BARRINGTON D. PARKER,

8 PETER W. HALL,

9 DENNY CHIN,

10 Circuit Judges. 

11 _____________________________________

12

13 YI XI ZHENG,

14 Petitioner, 

15

16 v. 11-3305-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Feng Li, Moslemi and Associates,

24 Inc., New York, New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Carl H. McIntyre, Jr.,

28 Assistant Director; Enitan O.

29 Otunla, Trial Attorney, Office of
2

1 Immigration Litigation, United

2 States Department of Justice,

3 Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

6 decision of the Board of Immigration Appeals (“BIA”), it is

7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

8 review is DENIED.

9 Yi Xi Zheng, a native and citizen of the People’s

10 Republic of China, seeks review of a July 29, 2011, decision

11 of the BIA affirming the June 16, 2009, decision of

12 Immigration Judge (“IJ”) Robert D. Weisel, denying his

13 application for asylum, withholding of removal, and relief

14 under the Convention Against Torture (“CAT”). In re Yi Xi

15 Zheng, No. A073 186 973 (B.I.A. July 29, 2011), aff’g No.

16 A073 186 973 (Immig. Ct. N.Y. City June 16, 2009). We

17 assume the parties’ familiarity with the underlying facts

18 and procedural history of this case.

19 Under the circumstances of this case, we review both

20 the BIA’s and IJ’s opinions. Zaman v. Mukasey, 514 F.3d

21 233, 237 (2d Cir. 2008). The applicable standards of review

22 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Aliyev

23 v. Mukasey, 549 F.3d 111, 115 (2d Cir. 2008). 

24
3

1 Substantial evidence supports the agency’s

2 conclusion that Zheng was not eligible for asylum solely on

3 the basis of his wife’s forced sterilization. See Shi Liang

4 Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-310 (2d Cir.

5 2007). Nevertheless, even though Zheng was not per se

6 eligible for asylum based on his wife’s forced

7 sterilization, he could still qualify for relief by

8 demonstrating that: (1) he engaged in “other resistance” to

9 the family planning policy; and (2) he suffered harm rising

10 to the level of persecution or has a well-founded fear of

11 suffering such harm as a direct result of his resistance. 

12 See id. at 313; see also 8 U.S.C. § 1101(a)(42); Matter of

13 J-S-, 24 I. & N. Dec. 520, 523 (A.G. 2008).

14 The agency assumed that Zheng had engaged in resistance

15 to China’s family planning policy, and reasonably determined

16 that he did not establish that he suffered harm rising to

17 the level of persecution on account of that resistance,

18 because he did not allege that he personally suffered any

19 emotional, physical, or economic harm arising from the

20 unfortunate incidents involving family planning officials. 

21 See Shi Liang Lin, 494 F.3d at 309 (holding that “an

22 individual whose spouse undergoes . . . a forced abortion or
4

1 involuntary sterilization may suffer a profound emotional

2 loss,” but that “an individual does not automatically

3 qualify for ‘refugee’ status on account of a coercive

4 procedure performed on someone else”) (emphasis added); see

5 also Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)

6 (emphasizing that “persecution is an extreme concept that

7 does not include every sort of treatment our society regards

8 as offensive”) (internal quotation marks and citations

9 omitted). Additionally, the agency did not err in

10 concluding that Zheng failed to demonstrate that his fear of

11 future persecution was objectively reasonable because he

12 admitted that he had lived unharmed in China for more than

13 six years and that his wife had lived unharmed in China for

14 twenty-two years after his confrontation with family

15 planning officials, his wife’s forced sterilization, and

16 their refusal to pay a family planning fine. See

17 8 C.F.R. § 1208.13(b)(2); see also Melgar de Torres v. Reno,

18 191 F.3d 307, 313 (2d Cir. 1999) (holding that when asylum

19 applicant’s mother and daughters continued to live in

20 petitioner’s native country, claim of well-founded fear was

21 weakened). Accordingly, because the agency reasonably found

22 that Zheng failed to demonstrate either past persecution or

23 a well-founded fear of persecution, it did not err in
5

1 denying asylum, withholding of removal, and CAT relief as

2 those claims were based on the same factual predicate. See

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

4 For the foregoing reasons, the petition for review is

5 DENIED. As we have completed our review, any stay of

6 removal that the Court previously granted in this petition

7 is VACATED, and any pending motion for a stay of removal in

8 this petition is DENIED as moot. Any pending request for

9 oral argument in this petition is DENIED in accordance with

10 Federal Rule of Appellate Procedure 34(a)(2), and Second

11 Circuit Local Rule 34.1(b).

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe, Clerk