09-3437-ag

Wang v. Holder

BIA

Schoppert, IJ

A079 630 002

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 14 day of June, two thousand ten. th

5

6 PRESENT:

7 GUIDO CALABRESI,

8 RICHARD C. WESLEY,

9 PETER W. HALL,

10 Circuit 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 Immigration
2

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

10 the BIA, affirming the February 3, 2004, decision of

11 Immigration Judge (“IJ”) Douglas B. Schoppert, which denied

12 her application for asylum, withholding of removal, and

13 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’g No. A079 630 002 (Immig. Ct. N.Y. City Feb. 3, 2004). 

16 We assume the parties’ familiarity with the underlying facts

17 and procedural history in this case.

18 Under the circumstances of this case, we review both

19 the IJ’s and the BIA’s opinions. See Zaman v. Mukasey, 514

20 F.3d 233, 237 (2d Cir. 2008). The applicable standards of

21 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).

23 Because Wang has failed to sufficiently argue before

24 this Court that she established past persecution, we deem
3

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

10 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

12 based on the fact that U.S. State Department reports do not

13 demonstrate that women without children, such as Wang, are

14 forced to undergo population control measures that would

15 constitute persecution. See Tu Lin v. Gonzales, 446 F.3d

16 395, 400 (2d Cir. 2006) (holding that State Department

17 Reports may be probative of issues before an I.J). 

18 Moreover, in order to constitute persecution, an IUD

19 insertion must occur as a result of the applicant’s

20 resistance to the family planning policy. See Xia Fan Huang

21 v. Holder, 591 F.3d 124, 130 (2d Cir. 2010). Here, Wang

22 failed to show that any threatened insertion of an IUD would
4

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).

11 Ultimately, the agency did not err in finding that Wang

12 failed to establish a well-founded fear of persecution. See

13 Corovic, 519 F.3d at 95. Thus, to the extent that Wang’s

14 applications for asylum, withholding of removal, and CAT

15 relief were based on her family planning claim, the agency

16 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

19 that “torture requires proof of something more severe than

20 the kind of treatment that would suffice to prove

21 persecution.”). 

22 For the foregoing reasons, the petition for review is

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

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: 

8 Catherine O’Hagan Wolfe, Clerk

9

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