09 -31 37 -ag

Weng v. Holder BIA Mulligan,IJ A077 648 800 

### UNITED STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO N O T 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 21 day of July, two thousand ten. st 5 6 PRESENT: 7 GUIDO CALABRESI, 8 REENA RAGGI, 9 RICHARD C. WESLEY, 10 C ircuit Judges . 11

_______________________________________ 12 13 ZHEN LANG WENG, 14 Petitioner , 15 16 v. 09-3137-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

______________________________________ 22 23 FOR PETITIONER: H. Raymond Fasano, New York, New 24 York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General, Richard M. Evans, Assistant 28 Director, Virginia Lum, Attorney, 29 Office of Immigration Litigation, 30 Civil Division, United States 31 Department of Justice, Washington, 32 D.C.2 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 Zhen Lang Weng, a native and citizen of 6 China, seeks review of the June 22, 2009, order of the BIA, 7 affirming the October 1, 2007, decision of Immigration Judge 8 (“IJ”) Thomas Mulligan denying his application for asylum, 9 withholding of removal, and relief under the Convention 1 0 Against Torture (“CAT”). In re Zhen Lang Weng , No. A077 648 1 1 800 (B.I.A. June 22, 2009), aff’gNo. A077 648 800 (Immig. 1 2 Ct. N.Y. City Oct. 1, 2007). We assume the parties’ 1 3 familiarity with the underlying facts and procedural history 1 4 in this case. 1 5 Under the circumstances of this case, we review the 1 6 decision of the IJ as supplemented by the BIA. See Yan Chen 17 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 1 8 applicable standards of review are well-established. 19 See8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey , 519 F.3d 2 0 90, 95 (2d Cir. 2008); Salimatou Bah v. Mukasey , 529 F.3d 2 1 99, 110 (2d Cir. 2008). 22 I. Asylum and Withholding 2 3 The agency reasonably found that, even assuming Weng’s3 1 credibility, he failed to establish his eligibility for 2 asylum and withholding of removal. The BIA reasonably found 3 that Weng was ineligible for relief based on his wife’s 4 forced sterilization. See Shi Liang Lin v. U.S. Dep’t of 5 Justice , 494 F.3d 296, 309-10 (2d Cir. 2007). In addition, 6 the BIA found that Weng did not engage in “other resistance” 7 to China’s family planning policy, but that even assuming he 8 did, he had not established that he suffered persecution on 9 account of hisresistance because the fine he received was 1 0 on account of his wife’s initial violation of the family 1 1 planning policy. Shi Liang Lin , 494 F.3d at 309-10. 1 2 Weng’s brief before us largely challenges the IJ’s 1 3 adverse credibility determination and ignores the BIA’s 1 4 finding that even assuming both his credibility and that he 1 5 resisted the policy, he failed to demonstrate that he was 1 6 fined on account of his resistance to China’s family 1 7 planning policy. Accordingly, we find no reason to disturb 1 8 the BIA’s decision. 19 III. CAT Relief 2 0 Weng argues that the IJ erred in engaging in “no 2 1 independent analysis” of his CAT claim. However, the record 2 2 indicates that the IJ “separately analyzed” his CAT claim. 2 3 Weng further argues that the IJ erred in finding that the4 1 evidence he submitted was insufficient to demonstrate his 2 eligibility for CAT relief. As the IJ and BIA noted, the 3 only particularized evidence that Weng presented to support 4 his application for CAT relief was his testimony that if he 5 was returned to China, he feared he would be arrested for 6 both failing to pay his outstanding fine and “hiding” from 7 family planning officials for twenty years. Therefore, the 8 agency did not err in finding that Weng’s testimony was 9 insufficient to demonstrate that it was more likely than not 1 0 that he would be tortured if he was returned to China. See 1 1 8 C.F.R. § 1208.16(c); Khouzam v. Ashcroft , 361 F.3d 161, 168 (2d Cir. 2004). 12 1 3 For the foregoing reasons, the petition for review is 1 4 DENIED. As we have completed our review, any stay of 1 5 removal that the Court previously granted in this petition 1 6 is VACATED, and any pending motion for a stay of removal in 1 7 this petition is DISMISSED as moot. Any pending request for 1 8 oral argument in this petition is DENIED in accordance with 1 9 Federal Rule of Appellate Procedure 34(a)(2), and Second 2 0 Circuit Local Rule 34.1(b). 2 1 FOR THE COURT: 2 2 Catherine O’Hagan Wolfe, Clerk 23 24