11-697-ag Chen v. Holder BIA Lamb, IJ A094 803 028 

### 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 26 th** **day of January, two thousand twelve.** 4 5 **PRESENT:** 6 **JOSEPH M. MCLAUGHLIN,** 7 **DEBRA ANN LIVINGSTON,** 8 **GERARD E. LYNCH,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **ZI JI CHEN,** 13 Petitioner**,** 14 15 **v. 11-697-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL, UNITED STATES** 19 **DEPARTMENT OF JUSTICE,** 20 Respondent**s.** 21

**_______________________________________** 22 23 **FOR PETITIONER: Yee Ling Poon; Robert Duk-Hwan Kim,** 24 **New York, New York.** 25 26 **FOR RESPONDENTS: Tony West, Assistant Attorney** 27 **General; Blair O’Connor, Assistant** 28 **Director; Kathryn L. Moore,** 29 **Attorney, Office of Immigration** 30 **Litigation, United States Department** 31 **of Justice, Washington, D.C.** 322 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 Zi Ji Chen, a native and citizen of the People’s 5 Republic of China, seeks review of a January 28, 2011, order 6 of the BIA affirming the February 2, 2009, decision of 7 Immigration Judge (“IJ”) Elizabeth A. Lamb, which denied his 8 application for asylum, withholding of removal, and relief 9 under the Convention Against Torture (“CAT”). In re Chen , 10 No. A094 803 028 (B.I.A. Jan. 28, 2011),aff’gNo. A094 803 11 028 (Immig. Ct. N.Y. City Feb. 2, 2009). We assume the 12 parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 the decision of the IJ as supplemented by the BIA. See Yan 16 Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 17 applicable standards of review are well-established. See 18 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 19 This Court has held that an individual is not per se 20 eligible for asylum based on the forced abortion or 21 sterilization of a spouse or partner because “applicants can 22 become candidates for asylum relief only based on 233 persecution that they themselves have suffered or must 1 suffer.” Shi Liang Lin v. U.S. Dep’t of Justice , 494 F.3d 2 296, 308 (2d Cir. 2007). In the absence of per se 3 persecution based on his wife’s abortion, Chen had to 4 demonstrate “other resistance to a coercive population 5 control program” and that he was persecuted as a result of 6 that resistance. See id . (citation omitted). However, Chen 7 does not claim that he suffered any harm independent from 8 his wife’s abortion, or that he engaged in any resistance to 9 China’s population control program. As a result, the agency 10 correctly determined that he was unable to establish that he 11 suffered past persecution. See id

. 12 Chen also argues that he has a well-founded fear of 13 future persecution because he and his wife plan to have more 14 children, and if they have a second child, there is a 15 reasonable possibility that he will be sterilized. However, 16 the agency did not err in finding that Chen’s claim was too 17 speculative to establish an objectively reasonable fear of 18 persecution. See Jian Xing Huang v. INS , 421 F.3d 125, 128- 19 29 (2d Cir. 2005). 20 Because Chen was unable to establish either past 21 persecution or a well-founded fear of future persecution, 224 the agency did not err in denying his application for 1 asylum. See8 C.F.R. § 1208.13(b); Ramsameachire v. 2 Ashcroft , 357 F.3d 169, 178 (2d Cir. 2004). Moreover, 3 because Chen was unable to show the objective likelihood of 4 persecution needed to make out an asylum claim, he was 5 necessarily unable to meet the higher standard required to 6 succeed on a claim for withholding of removal. See Paul v. 7 Gonzales , 444 F.3d 148, 156 (2d Cir. 2006);Gomez v. INS , 8 947 F.2d 660, 665 (2d Cir. 1991). 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our review, any stay of 11 removal that the Court previously granted in this petition 12 is VACATED, and any pending motion for a stay of removal in 13 this petition is DISMISSED as moot. Any pending request for 14 oral argument in this petition is DENIED in accordance with 15 Federal Rule of Appellate Procedure 34(a)(2), and Second 16 Circuit Local Rule 34.1(b). 17
FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20 21