09-4642-ag

Ye v. Holder

BIA

Mulligan, IJ

A077 316 740

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 9 day of September, two thousand ten. th

5

6 PRESENT:

7 JON O. NEWMAN,

8 JOSÉ A. CABRANES,

9 DENNY CHIN,

10 Circuit 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 of
2

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

10 denying Ye’s application for asylum and withholding of

11 removal. In re Zhen Hui Ye, No. A077 316 740 (B.I.A. Oct.

12 9, 2009), aff’g No. A077 316 740 (Immig. Ct. N.Y. City Jan.

13 24, 2008). We assume the parties’ familiarity with the

14 underlying facts and procedural history in this case.

15 As an initial matter, although Ye is challenging the

16 denial of relief in “asylum only” proceedings, as opposed to

17 an actual removal order, we nonetheless have jurisdiction

18 under 8 U.S.C. § 1252(a)(1) because the denial of relief in

19 these circumstances is the functional equivalent of a

20 removal order. See Kanacevic v. INS, 448 F.3d 129, 134 (2d

21 Cir. 2006). 

22 Under the circumstances of this case, we review the

23 IJ’s decision as supplemented by the BIA’s decision. See
3

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

10 establish a well-founded fear of future persecution. 

11 However, in light of Ye’s testimony that the threat of

12 sterilization was directed mainly at his wife, who was

13 subsequently sterilized, and that he did not allege a fear

14 of sterilization if returned to China, the BIA reasonably

15 concluded that Ye failed to meet his burden of proof. See

16 Salimatou Bah, 529 F.3d at 110. 

17 Because Ye was unable to meet his burden for asylum, he

18 necessarily failed to meet the higher burden required for

19 withholding of removal. See Paul v. Gonzales, 444 F.3d 148,

20 156-57 (2d Cir. 2006). 

21 For the foregoing reasons, the petition for review is

22 DENIED. As we have completed our review, any stay of
4

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