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 SUMMA RY 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 16 th** **day of May, two thousand twelve.** 4 5 **PRESENT:** 6 **BARRINGTON D. PARKER,** 7 **PETER W. HALL,** 8 **DENNY CHIN,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **YI XI ZHENG,** 13 Petitioner**,** 14 15 **v. 11-3305-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Feng Li, Moslemi and Associates,** 23 **Inc., New York, New York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Carl H. McIntyre, Jr.,** 27 **Assistant Director; Enitan O.** 28 **Otunla, Trial Attorney, Office of** 292 **Immigration Litigation, United** 1 **States Department of Justice,** 2 **Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 decision of the Board of Immigration Appeals (“BIA”), it is 6 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 7 review is DENIED. 8 Yi Xi Zheng, a native and citizen of the People’s 9 Republic of China, seeks review of a July 29, 2011, decision 10 of the BIA affirming the June 16, 2009, decision of 11 Immigration Judge (“IJ”) Robert D. Weisel, denying his 12 application for asylum, withholding of removal, and relief 13 under the Convention Against Torture (“CAT”). In re Yi Xi 14 Zheng, No. A073 186 973 (B.I.A. July 29, 2011), aff’g No. 15 A073 186 973 (Immig. Ct. N.Y. City June 16, 2009). We 16 assume the parties’ familiarity with the underlying facts 17 and procedural history of this case. 18 Under the circumstances of this case, we review both 19 the BIA’s and IJ’s opinions. Zaman v. Mukasey, 514 F.3d 20 233, 237 (2d Cir. 2008). The applicable standards of review 21 are well-established. See8 U.S.C. § 1252(b)(4)(B); Aliyev 22 v. Mukasey, 549 F.3d 111, 115 (2d Cir. 2008). 23

243 Substantial evidence supports the agency’s 1 conclusion that Zheng was not eligible for asylum solely on 2 the basis of his wife’s forced sterilization. See Shi Liang 3 Lin v. U.S. Dep’t of Justice , 494 F.3d 296, 309-310 (2d Cir. 4 2007). Nevertheless, even though Zheng was not per se 5 eligible for asylum based on his wife’s forced 6 sterilization, he could still qualify for relief by 7 demonstrating that: (1) he engaged in “other resistance” to 8 the family planning policy; and (2) he suffered harm rising 9 to the level of persecution or has a well-founded fear of 10 suffering such harm as a direct result of his resistance. 11

See id. at 313; see also8 U.S.C. § 1101(a)(42); Matter of 12

J-S- , 24 I. & N. Dec. 520, 523 (A.G. 2008). 13 The agency assumed that Zheng had engaged in resistance 14 to China’s family planning policy, and reasonably determined 15 that he did not establish that he suffered harm rising to 16 the level of persecution on account of that resistance, 17 because he did not allege that he personally suffered any 18 emotional, physical, or economic harm arising from the 19 unfortunate incidents involving family planning officials. 20 See Shi Liang Lin , 494 F.3d at 309 (holding that “an 21 individual whose spouse undergoes . . . a forced abortion or 224 involuntary sterilization may suffer a profound emotional 1 loss,” but that “an individual does notautomatically 2 qualify for ‘refugee’ status on account of a coercive 3 procedure performed on someone else”) (emphasis added); see 4 also Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) 5 (emphasizing that “persecution is an extreme concept that 6 does not include every sort of treatment our society regards 7 as offensive”) (internal quotation marks and citations 8 omitted). Additionally, the agency did not err in 9 concluding that Zheng failed to demonstrate that his fear of 10 future persecution was objectively reasonable because he 11 admitted that he had lived unharmed in China for more than 12 six years and that his wife had lived unharmed in China for 13 twenty-two years after his confrontation with family 14 planning officials, his wife’s forced sterilization, and 15 their refusal to pay a family planning fine. See 16 8 C.F.R. § 1208.13(b)(2); see also Melgar de Torres v. Reno , 17 191 F.3d 307, 313 (2d Cir. 1999) (holding that when asylum 18 applicant’s mother and daughters continued to live in 19 petitioner’s native country, claim of well-founded fear was 20 weakened). Accordingly, because the agency reasonably found 21 that Zheng failed to demonstrate either past persecution or 22 a well-founded fear of persecution, it did not err in 235 denying asylum, withholding of removal, and CAT relief as 1 those claims were based on the same factual predicate. See 2 Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). 3 For the foregoing reasons, the petition for review is 4 DENIED. As we have completed our review, any stay of 5 removal that the Court previously granted in this petition 6 is VACATED, and any pending motion for a stay of removal in 7 this petition is DENIED as moot. Any pending request for 8 oral argument in this petition is DENIED in accordance with 9 Federal Rule of Appellate Procedure 34(a)(2), and Second 10 Circuit Local Rule 34.1(b). 11

FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13