15-2759 

Wang v. Lynch 

BIA 

Poczter, IJ 

A078 383 276 

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 TO 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 for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

5th 4 day of December, two thousand sixteen. 

5 

6 PRESENT: 

7 ROBERT A. KATZMANN, 

8 Chief Judge, 

9 RICHARD C. WESLEY, 

10 PETER W. HALL,

11 Circuit Judges. 

12 _____________________________________ 

13 

14 YUN CHENG WANG, 

15 Petitioner, 

16 

17 v. 15-2759 

18 NAC 

19 LORETTA E. LYNCH, UNITED STATES 

20 ATTORNEY GENERAL, 

21 Respondent. 

22 _____________________________________ 

23 

24 FOR PETITIONER: Yee Ling Poon; Deborah Niedermeyer, 

25 Law Office of Yee Ling Poon, LLC, New 

26 York, New York. 

27 

28 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

29 Assistant Attorney General; Alison 

30 M. Igoe, Senior Counsel for National 

31 Security; Daniel I. Smulow, Counsel 
2

1 for National Security, Office of 

2 Immigration Litigation, United 

3 States Department of Justice, 

4 Washington, D.C. 

5 

6 UPON DUE CONSIDERATION of this petition for review of a 

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

8 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

9 DENIED. 

10 Petitioner Yun Cheng Wang, a native and citizen of the 

11 People’s Republic of China, seeks review of an August 6, 2015, 

12 decision of the BIA affirming a September 27, 2013, decision 

13 of an Immigration Judge (“IJ”) denying Wang’s application for 

14 asylum, withholding of removal, and relief under the Convention 

15 Against Torture (“CAT”). In re Yun Cheng Wang, No. A078 383 

16 276 (B.I.A. Aug. 6, 2015), aff’g No. A078 383 276 (Immig. Ct. 

17 N.Y. City Sept. 27, 2013). We assume the parties’ familiarity 

18 with the underlying facts and procedural history in this case. 

19 We have reviewed both the IJ’s and the BIA’s opinions “for 

20 the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 

21 (2d Cir. 2006). The applicable standards of review are well 

22 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 

23 Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because Wang’s brief 
3

1 does not challenge the agency’s denial of CAT deferral or 

2 reopening, we review only the agency’s conclusion that Wang’s 

3 acts as a driver for Chinese family planning officials bar him 

4 from asylum and withholding of removal. See Yueqing Zhang v. 

5 Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir. 2005). We conclude 

6 that the persecutor bar applies and is dispositive of Wang’s 

7 petition. 

8 As an initial matter, the Government is correct that Wang 

9 failed to exhaust two arguments in his brief. Wang argues that 

10 (1) he did not knowingly assist in persecution and the 

11 translator’s use of the word arrest was an erroneous 

12 translation; and (2) the IJ never determined whether an “arrest” 

13 under Chinese law is sufficiently coercive to trigger 

14 application of the persecutor bar. Because the Government 

15 raises exhaustion and because Wang’s brief to the BIA did not 

16 raise these arguments, these issues are not properly before us. 

17 Foster v. U.S. INS, 376 F.3d 75, 78 (2d Cir. 2004) (“To preserve 

18 a claim, we require [p]etitioner to raise issues to the BIA in 

19 order to preserve them for judicial review.” (internal 

20 quotation marks)); see also Lin Zhong v. U.S. Dep’t of Justice, 

21 480 F.3d 104, 107, 121-23 (2d Cir. 2006). 
4

1 Moreover, even considering all of the arguments, we discern 

2 no error in the agency’s application of the persecutor bar. An 

3 alien is barred from asylum and withholding of removal if he 

4 “ordered, incited, assisted, or otherwise participated in the 

5 persecution of any person on account of” a protected ground. 

6 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i); 

7 see Zhang Jian Xie v. INS, 434 F.3d 136, 140 (2d Cir. 2006). 

8 If the evidence indicates that an asylum applicant engaged in 

9 any of these activities, the applicant has “the burden of 

10 proving by a preponderance of the evidence that he . . . did 

11 not so act.” 8 C.F.R. § 1208.13(c)(2)(ii). “Four relevant 

12 factors determine whether the persecutor bar applies to a 

13 particular alien: (1) whether the alien was ‘involved in’ acts 

14 of persecution by ordering, inciting, or actively carrying out 

15 the acts; (2) whether there is a nexus between the persecution” 

16 and a protected ground; “(3) whether the alien’s actions, if 

17 not outright ‘involvement’ under the first factor, amount to 

18 assistance or participation in persecution;” and (4) whether 

19 the alien was culpable, i.e., “whether [he] had sufficient 

20 knowledge that [his] actions might assist in persecution.” Yan 
5

1 Yan Lin v. Holder, 584 F.3d 75, 79-80 (2d Cir. 2009); see also

2 Balachova v. Mukasey, 547 F.3d 374, 384-85 (2d Cir. 2008). 

3 Here, the IJ reasonably concluded that Wang’s case was 

4 controlled by our precedent. In Zhang Jian Xie, we concluded 

5 that the agency properly applied the persecutor bar to an asylum 

6 applicant who, while working as a driver for family planning 

7 authorities, transported women to hospitals so family planning 

8 officials could perform forced abortions. 434 F.3d at 138. We 

9 concluded that the Xie was subject to the persecutor bar 

10 regardless of his redemptive act in freeing the final woman he 

11 was transporting. Id. at 143–44. 

12 Wang’s case is not meaningfully distinguishable. As the 

13 IJ noted, Wang consistently testified that he drove family 

14 planning authorities to arrest women, which rebuts his claim 

15 that he did not knowingly assist in persecution. His claim is 

16 further rebutted by his testimony that he knew what he was doing 

17 was not right and that he warned a friend when the authorities 

18 were coming for her. Wang argues that the only woman he 

19 transported to the hospital actually went along voluntarily, 

20 but Wang’s testimony on this point was equivocal: he stated that 

21 she did not resist and may have consented, but also noted that 
6

1 she did not look happy during the drive and that he did not know 

2 what happened when the family planning staff was in the woman’s 

3 house. Because Wang had the burden to rebut application of the 

4 bar and his testimony supports a conclusion that he knowingly 

5 transported a woman for an involuntary abortion and drove 

6 officials in other attempts to detain women for abortions, we 

7 see no basis to overturn the agency’s ruling. 8 C.F.R. 

8 § 1208.13(c)(2)(ii). 

9 Finally, in Zhang Jian Xie this Court held that, despite 

10 the petitioner’s redemptive act of releasing a captive woman 

11 who he was transporting to the hospital for a forced abortion, 

12 the BIA did not err in concluding that his other acts of 

13 transporting women for forced abortions subjected him to the 

14 persecutor bar. 434 F.3d at 143–44. Wang argues that Zhang 

15 Jian Xie is distinguishable because Wang only assisted in one 

16 abortion, but he cites no authority for the proposition that 

17 application of the persecutor bar turns on the number of times 

18 an alien assists in persecution. In any event, we have 

19 suggested that “the BIA should apply the same definition to 

20 persecution in the persecutor-bar context as it does in defining 

21 who is a refugee,” Balachova, 547 F.3d at 384, and it is 
7

1 well-settled that an alien has been persecuted if they have been 

2 subjected to a single forced abortion, Yan Yan Lin, 584 F.3d 

3 at 80 (“It is settled law that forced abortion is persecution 

4 on account of political opinion.”). See also 8 U.S.C. 

5 1101(a)(42) (providing that asylum is not available to anyone 

6 who “ordered, incited, assisted, or otherwise participated in 

7 the persecution of any person”). As in Zhang Jian Xie, we have 

8 no basis to conclude that the BIA erred in applying the 

9 persecutor bar despite Wang’s redemptive act. 

10 For the foregoing reasons, the petition for review is 

11 DENIED. As we have completed our review, any stay of removal 

12 that the Court previously granted in this petition is VACATED, 

13 and any pending motion for a stay of removal in this petition 

14 is DISMISSED as moot. Any pending request for oral argument 

15 in this petition is DENIED in accordance with Federal Rule of 

16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

17 34.1(b). 

18 FOR THE COURT: 

19 Catherine O=Hagan Wolfe, Clerk