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.

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 DENNIS JACOBS,

8 Chief Judge,

9 ROSEMARY S. POOLER,

10 DEBRA ANN LIVINGSTON,

11 Circuit Judges. 

12 ______________________________________

13

14 MU REN ZHENG,

15 Petitioner, 

16

17 v. 10-1468-ag

18 NAC

19 ERIC H. HOLDER, JR., 

20 UNITED STATES ATTORNEY GENERAL,

21 Respondent.

22 ______________________________________

23

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

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Terri J. Scadron, Assistant

28 Director; Lisa M. Damiano, Trial

29 Attorney, Office of Immigration

30 Litigation; U.S. Department of

31 Justice, Washington, 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 Mu Ren Zheng, a native and citizen of China, seeks

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

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

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

9 withholding of removal, and relief under the Convention

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

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

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

13 familiarity with the underlying facts and procedural history

14 in this case.

15 Under the circumstances of this case, we review the

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

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

18 applicable standards of review are well-established. 

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

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

21 110 (2d Cir. 2008).

22
3

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

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

3 well-founded fear of future persecution or his eligibility

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

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

6 Therefore, we consider only whether Zheng demonstrated past

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

8 planning policy as required to establish eligibility for

9 asylum. 

10 Zheng’s argument that he suffered persecution based on

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

12 become candidates for asylum relief only based on

13 persecution that they themselves have suffered or must

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

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

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

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

18 of conceiving a second child without government

19 authorization and arguing with family planning officials

20 amount to “other resistance.” Although individuals whose

21 spouses were forcibly aborted may be entitled to relief

22 where they demonstrate persecution based on their “other
4

1 resistance to a coercive population control program,” Shao

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

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

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

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

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

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

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

9 family planning officials constituted “other resistance,”

10 Zheng testified repeatedly that the officials would have

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

12 Accordingly, the record does not compel the conclusion that

13 the argument constituted “other resistance” precipitating

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

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

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

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

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

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

20 the agency reasonably concluded that Zheng failed to

21 demonstrate other resistance, and that finding is

22 dispositive, we need not reach Zheng’s challenge to the
5

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

2 level of persecution. 

3 For the foregoing reasons, the petition for review is

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

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

6 FOR THE COURT: 

7 Catherine O’Hagan Wolfe, Clerk

8

9