10-2225-ag

Shi v. Holder

BIA

Nelson, IJ

A094 922 372

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

New York, on the 22nd 4 day of March, two thousand twelve.

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 BARRINGTON D. PARKER,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 ______________________________________

12

13 YING SHI, AKA YING XING SHI,

14 Petitioner, 

15

16 10-2225-ag

17 v. NAC 

18

19

20 ERIC H. HOLDER, JR., UNITED STATES 

21 ATTORNEY GENERAL,

22 Respondent.

23 ______________________________________

24

25 FOR PETITIONER: Jan Potemkin, New York, New York. 26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Richard M. Evans, Assistant

29 Director; Virginia Lum, Attorney,

30 Office of Immigration Litigation,

31 Civil Division, United States

32 Department of Justice, Washington,

33 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, Ying Shi, a native and citizen of China,

6 seeks review of a May 11, 2010, decision of the BIA

7 affirming the May 29, 2008, decision of Immigration Judge

8 (“IJ”) Barbara A. Nelson denying his application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Ying Shi, No. A094 922 372

11 (B.I.A. May 11, 2010), aff’g No. A094 922 372 (Immig. Ct.

12 N.Y. City May 29, 2008). We assume the parties’ familiarity

13 with the underlying facts and procedural history of the

14 case.

15 Under the circumstances of this case, we have reviewed

16 the IJ’s decision as modified by the BIA. See Xue Hong Yang

17 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 

18 The applicable standards of review are well-established. 

19 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

20 F.3d 510, 513 (2d Cir. 2009).

21 Shi does not challenge the agency’s findings that he

22 did not suffer past persecution, but argues that he

23 established that he will be targeted for sterilization upon
3

1 return to China because of his “other resistance” to China’s

2 family planning policy. The agency reasonably determined

3 that Shi failed to establish that his fear of future

4 persecution was objectively reasonable, given that he only

5 claims to have heard from other people that family planning

6 officials wanted to sterilize him, he lived and worked in

7 his home province for one year without incident after he

8 heard that family planning officials wanted to sterilize

9 him, and he did not testify that he took any efforts to

10 conceal his presence during that time. See Jian Xing Huang

11 v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that a

12 fear is not objectively reasonable if it lacks “solid

13 support” in the record and is merely “speculative at

14 best.”). Cf. Melgar de Torres v. Reno, 191 F.3d 307, 313

15 (2d Cir. 1999) (finding that where asylum applicant’s mother

16 and daughters continued to live in petitioner’s native

17 country, claim of well-founded fear was diminished).

18 Although Shi claims that background materials

19 established the objective reasonableness of his fear, Shi

20 did not present any evidence of forced sterilization in his

21 home province of Fujian, see Jian Hui Shao v. Mukasey, 546

22 F.3d 138, 160-61, 169-70 (2d Cir. 2008), and the BIA

23 specifically addressed the background evidence submitted and
4

1 reasonably concluded that the evidence did not establish

2 that Shi would be unable to live securely outside of his

3 home village, see Xiao Ji Chen v. U.S. Dep’t of Justice, 471

4 F.3d 315, 342 (2d Cir. 2006). 

5 Because objective evidence of future harm is required

6 for withholding of removal and CAT relief, the agency did

7 not err in denying relief based on Shi’s failure to

8 establish that his fear of future sterilization was

9 objectively reasonable. See Ramsameachire v. Ashcroft, 357

10 F.3d 169, 178, 183-86 (2d Cir. 2004) (providing that CAT

11 claim requires petitioner to “proffer objective evidence

12 that he or she is likely to be tortured in the future”). 

13 For the foregoing reasons, the petition for review is

14 DENIED. 

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe, Clerk

17

18