10-1468-ag Zheng v. Holder BIA Ferris, IJ A097 958 474 

## 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.**  

### At a stated term of the United States Court of Appeals 1 

### for the Second Circuit, held at the Daniel Patrick Moynihan 2 

### United States Courthouse, 500 Pearl Street, in the City of 3 

### New York, on the 22 **nd** 

### day of March, two thousand twelve, 4 5 

### PRESENT: 6 

### DENNIS JACOBS, 7 

### Chief Judge, 8 

### ROSEMARY S. POOLER, 9 

### DEBRA ANN LIVINGSTON, 10 

### Circuit Judges **.** 11



### ______________________________________ 12 13 

### MU REN ZHENG, 14 

### Petitioner **,** 15 16 

### v. **10-1468-ag** 17 

### NAC 18 

### ERIC H. HOLDER, JR., 19 

### UNITED STATES ATTORNEY GENERAL, 20 

### Respondent **.** 21



### ______________________________________ 22 23 

### FOR PETITIONER: **G. Victoria Calle, New York, NY.** 24 25 

### FOR RESPONDENT: **Tony West, Assistant Attorney** 26 

### General; Terri J. Scadron, Assistant 27 

### Director; Lisa M. Damiano, Trial 28 

### Attorney, Office of Immigration 29 

### Litigation; U.S. Department of 30 

### Justice, Washington, D.C. 31

### 2 UPON DUE CONSIDERATION of this petition for review of a 1 

### Board of Immigration Appeals (“BIA”) decision, it is hereby 2 

### ORDERED, ADJUDGED, AND DECREED, that the petition for review 3 

### is DENIED. 4 

### Mu Ren Zheng, a native and citizen of China, seeks 5 

### review of a March 22, 2010, decision of the BIA affirming 6 

### the May 6, 2008, decision of Immigration Judge (“IJ”) Noel 7 

### Ferris, which denied Zheng’s application for asylum, 8 

### withholding of removal, and relief under the Convention 9 

### Against Torture (“CAT”). In re Mu Ren Zheng, No. A097 958 10 

### 474 (B.I.A. Mar. 22, 2010), aff’g No. A097 958 474 (Immig. 11 

### Ct. N.Y. City May 6, 2008). We assume the parties’ 12 

### familiarity with the underlying facts and procedural history 13 

### in this case. 14 

### Under the circumstances of this case, we review the 15 

### decision of the IJ as supplemented by the BIA. See Yan Chen 16 

### v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 17 

### applicable standards of review are well-established. 18



### See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 19 

### 519 F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey , 529 F.3d 99, 20 

### 110 (2d Cir. 2008). 21

22

### 3 As an initial matter, Zheng has waived any challenge to 1 

### the agency’s determination that he failed to demonstrate a 2 

### well-founded fear of future persecution or his eligibility 3 

### for withholding of removal or CAT relief. See Yueqing Zhang 4 

### v. Gonzales , 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005). 5 

### Therefore, we consider only whether Zheng demonstrated past 6 

### persecution based on “other resistance” to China’s family 7 

### planning policy as required to establish eligibility for 8 

### asylum. 9 

### Zheng’s argument that he suffered persecution based on 10 

### his wife’s forced abortion is unavailing, as “applicants can 11 

### become candidates for asylum relief only based on 12 

### persecution that they themselves have suffered or must 13 

### suffer.” Shi Liang Lin v. U.S. Dep’t of Justice , 494 F.3d 14 

### 296, 308 (2d Cir. 2007) (en banc). Zheng further asserts 15 

### that he was persecuted on account of “other resistance” to 16 

### China’s family planning policy, contending that his actions 17 

### of conceiving a second child without government 18 

### authorization and arguing with family planning officials 19 

### amount to “other resistance.” Although individuals whose 20 

### spouses were forcibly aborted may be entitled to relief 21 

### where they demonstrate persecution based on their “other 22

### 4 resistance to a coercive population control program,” Shao 1 

### Yan Chen v. U.S. Dep’t of Justice , 417 F.3d 303, 304 n.1 (2d 2 

### Cir. 2005) (per curiam) (internal quotation marks omitted), 3 

### merely impregnating one’s spouse is not an act of 4 

### “resistance,” see, e.g., Shi Liang Lin , 494 F.3d at 313 5 

### ( citing Ru-Jian Zhang v. Ashcroft , 395 F.3d 531, 532 (5th 6 

### Cir. 2004)); Matter of S-L-L- , 24 I. & N. Dec. 1, 11 7 

### (2006). As to Zheng’s assertion that his argument with the 8 

### family planning officials constituted “other resistance,” 9 

### Zheng testified repeatedly that the officials would have 10 

### arrested him even if he had not argued with them. 11 

### Accordingly, the record does not compel the conclusion that 12 

### the argument constituted “other resistance” precipitating 13 

### any subsequent mistreatment. See Shi Liang Lin , 494 F.3d at 14 

### 313 (indicating that, to be eligible for asylum, the spouse 15 

### of a woman who was forcibly aborted must “prove past 16 

### persecution or a fear of future persecution for ‘resistance’ 17 

### that is directly related to his . . . own opposition to a 18 

### coercive family planning policy”) (emphasis added). Because 19 

### the agency reasonably concluded that Zheng failed to 20 

### demonstrate other resistance, and that finding is 21 

### dispositive, we need not reach Zheng’s challenge to the 22

### 5 agency’s finding that his detention did not rise to the 1 

### level of persecution. 2 

### For the foregoing reasons, the petition for review is 3 

### DENIED. As we have completed our review, any pending motion 4 

### for a stay of removal in this petition is DISMISSED as moot. 5



### FOR THE COURT: 6 

### Catherine O’Hagan Wolfe, Clerk 7 8 9