09-3137-ag

Weng v. Holder

BIA

Mulligan, IJ

A077 648 800

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 21 day of July, two thousand ten. st

5

6 PRESENT:

7 GUIDO CALABRESI,

8 REENA RAGGI,

9 RICHARD C. WESLEY,

10 Circuit 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

10 Against Torture (“CAT”). In re Zhen Lang Weng, No. A077 648

11 800 (B.I.A. June 22, 2009), aff’g No. A077 648 800 (Immig.

12 Ct. N.Y. City Oct. 1, 2007). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 Under the circumstances of this case, we review the

16 decision of the IJ as supplemented by the BIA. See Yan Chen

17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

18 applicable standards of review are well-established. 

19 See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d

20 90, 95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d

21 99, 110 (2d Cir. 2008).

22 I. Asylum and Withholding

23 The agency reasonably found that, even assuming Weng’s 
3

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 his resistance because the fine he received was

10 on account of his wife’s initial violation of the family

11 planning policy. Shi Liang Lin, 494 F.3d at 309-10.

12 Weng’s brief before us largely challenges the IJ’s

13 adverse credibility determination and ignores the BIA’s

14 finding that even assuming both his credibility and that he

15 resisted the policy, he failed to demonstrate that he was

16 fined on account of his resistance to China’s family

17 planning policy. Accordingly, we find no reason to disturb

18 the BIA’s decision.

19 III. CAT Relief

20 Weng argues that the IJ erred in engaging in “no

21 independent analysis” of his CAT claim. However, the record

22 indicates that the IJ “separately analyzed” his CAT claim. 

23 Weng further argues that the IJ erred in finding that the
4

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

10 that he would be tortured if he was returned to China. See

11 8 C.F.R. § 1208.16(c); Khouzam v. Ashcroft, 361 F.3d 161,

12 168 (2d Cir. 2004).

13 For the foregoing reasons, the petition for review is

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

15 removal that the Court previously granted in this petition

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

17 this petition is DISMISSED as moot. Any pending request for

18 oral argument in this petition is DENIED in accordance with

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

20 Circuit Local Rule 34.1(b).

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe, Clerk

23

24