09 -3 43 7- ag

Wangv. Hol der BIA Schopp ert, IJ A079 630 002 

### UNITE D STATES COURT OFAPPEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDE R

RU LI NG S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED O N ORA FT ERJAN UA RY 1 , 20 07 , IS P ERMI TT ED AND I S GO VE RN ED B Y FE DE RA L RU LE 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 14 day of June, two thousand ten. th 5 6 PRESENT: 7 GUIDO CALABRESI, 8 RICHARD C. WESLEY, 9 PETER W. HALL, 10 C ircuit Judges . 11

_______________________________________ 12 13 LI ZHENG WANG, 14 Petitioner , 15 16 v. 09-3437-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

_______________________________________ 22 23 FOR PETITIONER: Eric Zheng, New York, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General, Civil Division; William C. 27 Peachey, Assistant Director; 28 Yamileth G. Handuber, Trial 29 Attorney, Office of Immigration2 1 Litigation, United States Department 2 of Justice, Washington, D.C. 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED, that the petition for review 7 is DENIED. 8 Li Zheng Wang, a native and citizen of the People’s 9 Republic of China, seeks review of a July 23, 2009, order of 1 0 the BIA, affirming the February 3, 2004, decision of 1 1 Immigration Judge (“IJ”) Douglas B. Schoppert, which denied 1 2 her application for asylum, withholding of removal, and 1 3 relief under the Convention Against Torture (“CAT”). In re 14 Li Zheng Wang , No. A079 630 002 (B.I.A. July 23, 2009), 15 aff’gNo. A079 630 002 (Immig. Ct. N.Y. City Feb. 3, 2004). 1 6 We assume the parties’ familiarity with the underlying facts 1 7 and procedural history in this case. 1 8 Under the circumstances of this case, we review both 1 9 the IJ’s and the BIA’s opinions. See Zaman v. Mukasey , 514 2 0 F.3d 233, 237 (2d Cir. 2008). The applicable standards of 2 1 review are well-established. See 8 U.S.C. § 1252(b)(4); see 22 also Corovic v. Mukasey , 519 F.3d 90, 95 (2d Cir. 2008). 2 3 Because Wang has failed to sufficiently argue before 2 4 this Court that she established past persecution, we deem3 1 any such argument waived . See Yueqing Zhang v. Gonzales , 2 426 F.3d 540, 545 n.7 (2d Cir. 2005). 3 Absent past persecution, an applicant may establish 4 eligibility for asylum by showing that she subjectively 5 fears persecution on account of an enumerated ground and 6 that her fear is objectively reasonable. Ramsameachire v. 7 Ashcroft , 357 F.3d 169, 178 (2d Cir. 2004). The agency 8 concluded, however, that Wang failed to demonstrate a well9 founded fear of future persecution on account of China’s 1 0 family planning policy. See 8 U.S.C. § 1101(a)(42); see 11 also 8 C.F.R. § 1208.13(a). That conclusion was reasonably 1 2 based on the fact that U.S. State Department reports do not 1 3 demonstrate that women without children, such as Wang, are 1 4 forced to undergo population control measures that would 1 5 constitute persecution. See Tu Lin v. Gonzales , 446 F.3d 1 6 395, 400 (2d Cir. 2006) (holding that State Department 1 7 Reports may be probative of issues before an I.J). 1 8 Moreover, in order to constitute persecution, an IUD 1 9 insertion must occur as a result of the applicant’s 2 0 resistance to the family planning policy. See Xia Fan Huang 21 v. Holder , 591 F.3d 124, 130 (2d Cir. 2010). Here, Wang 2 2 failed to show that any threatened insertion of an IUD would4 1 be on account of her resistance to the family planning 2 policy. Rather, she testified that family planning cadres 3 threatened her because she failed to invite them to her 4 wedding and because they erroneously believed her to have 5 one child. Regardless, Wang was able to avoid further 6 difficulty by paying a fine. Finally, the agency reasonably 7 concluded that Wang could avoid persecution by relocating 8 within China, as her husband had done. See Matter of Acosta 9 19 I. & N. Dec. 211, 212 (BIA 1985); See also Melgar de 10 Torres v. Reno , 191 F.3d 307, 313 (2d Cir. 1999). 1 1 Ultimately, the agency did not err in finding that Wang 1 2 failed to establish a well-founded fear of persecution. See 13 Corovic , 519 F.3d at 95. Thus, to the extent that Wang’s 1 4 applications for asylum, withholding of removal, and CAT 1 5 relief were based on her family planning claim, the agency 1 6 properly denied those applications for relief. See Paul v. 17 Gonzales , 444 F.3d 148, 156 (2d Cir. 2006); cf. Kyaw Zwar 18 Tun v. INS , 445 F.3d 554, 567 (2d Cir. 2006) (recognizing 1 9 that “torture requires proof of something more severe than 2 0 the kind of treatment that would suffice to prove 2 1 persecution.”).

For the foregoing reasons, the petition for review is 22 2 3 DENIED. As we have completed our review, any stay of5 1 removal that the Court previously granted is VACATED, and 2 any pending motion for a stay of removal in this petition is 3 DISMISSED as moot. Any pending request for oral argument in 4 this petition is DENIED in accordance with Federal Rule of 5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 6 34.1(b). 7 FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 8 9 10 11