09 -4642 -ag

Ye v. Holder BIA Mulligan,IJ A077 316 740 

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

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY O RDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERA L 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 9 day of September, two thousand ten. th 5 6 PRESENT: 7 JON O. NEWMAN, 8 JOSÉ A. CABRANES, 9 DENNY CHIN, 10 C ircuit Judges . 11 12

_____________________________________ 13 14 ZHEN HUI YE, 15 Petitioner , 16 17 v. 09-4642-ag 18 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL 21 Respondent . 22

______________________________________ 23 24 FOR PETITIONER: Troy Nader Moslemi, Moslemi & Associates, 25 New York, New York. 26 27 FOR RESPONDENT: Tony West, Assistant Attorney General, 28 Civil Division; John S. Hogan, Senior 29 Litigation Counsel; Jennifer L. 30 Lightbody, Senior Litigation Counsel; 31 Leslie M. Thompson, Paralegal Specialist, 32 Office of Immigration Litigation, Civil 33 Division, United States Department of2 1 Justice, Washington, D.C. 2 UPON DUE CONSIDERATION of this petition for review of a 3 Board of Immigration Appeals (“BIA”) decision, it is hereby 4 ORDERED, ADJUDGED, AND DECREED that the petition for review 5 is DENIED. 6 Petitioner Zhen Hui Ye, a native and citizen of the 7 People’s Republic of China, seeks review of an October 9, 8 2009, order of the BIA affirming the January 24, 2008, 9 decision of Immigration Judge (“IJ”) Thomas J. Mulligan 1 0 denying Ye’s application for asylum and withholding of 1 1 removal. In re Zhen Hui Ye , No. A077 316 740 (B.I.A. Oct. 1 2 9, 2009), aff’gNo. A077 316 740 (Immig. Ct. N.Y. City Jan. 1 3 24, 2008). We assume the parties’ familiarity with the 1 4 underlying facts and procedural history in this case. 1 5 As an initial matter, although Ye is challenging the 1 6 denial of relief in “asylum only” proceedings, as opposed to 1 7 an actual removal order, we nonetheless have jurisdiction 1 8 under 8 U.S.C. § 1252(a)(1) because the denial of relief in 1 9 these circumstances is the functional equivalent of a 2 0 removal order. See Kanacevic v. INS , 448 F.3d 129, 134 (2d 2 1 Cir. 2006). 2 2 Under the circumstances of this case, we review the 2 3 IJ’s decision as supplemented by the BIA’s decision. See3 1 Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 2 applicable standards of review are well-established. 3 See 8 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey , 546 4 F.3d 138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey , 5 529 F.3d 99, 110 (2d Cir. 2008). 6 Ye concedes that he did not engage in “other 7 resistance” to China’s family planning policy, but argues 8 that the IJ did not consider the fact that he was threatened 9 with sterilization in determining that he failed to 1 0 establish a well-founded fear of future persecution. 1 1 However, in light of Ye’s testimony that the threat of 1 2 sterilization was directed mainly at his wife, who was 1 3 subsequently sterilized, and that he did not allege a fear 1 4 of sterilization if returned to China, the BIA reasonably 1 5 concluded that Ye failed to meet his burden of proof. See 16 Salimatou Bah , 529 F.3d at 110. 1 7 Because Ye was unable to meet his burden for asylum, he 1 8 necessarily failed to meet the higher burden required for 1 9 withholding of removal. See Paul v. Gonzales , 444 F.3d 148, 2 0 156-57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is 21 2 2 DENIED. As we have completed our review, any stay of4 1 removal that the Court previously granted in this petition 2 is VACATED, and any pending motion for a stay of removal in 3 this petition is DISMISSED as moot. Any pending request for 4 oral argument in this petition is DENIED in accordance with 5 Federal Rule of Appellate Procedure 34(a)(2), and Second 6 Circuit Local Rule 34.1(b). 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9 10