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.

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 26th 4 day of January, two thousand twelve.

5

6 PRESENT:

7 JOSEPH M. MCLAUGHLIN,

8 DEBRA ANN LIVINGSTON,

9 GERARD E. LYNCH,

10 Circuit Judges. 

11 _______________________________________

12

13 ZI JI CHEN,

14 Petitioner, 

15

16 v. 11-697-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL, UNITED STATES 

20 DEPARTMENT OF JUSTICE,

21 Respondents.

22 _______________________________________

23

24 FOR PETITIONER: Yee Ling Poon; Robert Duk-Hwan Kim,

25 New York, New York.

26

27 FOR RESPONDENTS: Tony West, Assistant Attorney

28 General; Blair O’Connor, Assistant

29 Director; Kathryn L. Moore,

30 Attorney, Office of Immigration

31 Litigation, United States Department

32 of 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 Zi Ji Chen, a native and citizen of the People’s

6 Republic of China, seeks review of a January 28, 2011, order

7 of the BIA affirming the February 2, 2009, decision of

8 Immigration Judge (“IJ”) Elizabeth A. Lamb, which denied his

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re Chen,

11 No. A094 803 028 (B.I.A. Jan. 28, 2011), aff’g No. A094 803

12 028 (Immig. Ct. N.Y. City Feb. 2, 2009). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history in this case.

15 Under the circumstances of this case, we have reviewed

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

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

18 applicable standards of review are well-established. See

19 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

20 This Court has held that an individual is not per se

21 eligible for asylum based on the forced abortion or

22 sterilization of a spouse or partner because “applicants can

23 become candidates for asylum relief only based on
3

1 persecution that they themselves have suffered or must

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

3 296, 308 (2d Cir. 2007). In the absence of per se

4 persecution based on his wife’s abortion, Chen had to

5 demonstrate “other resistance to a coercive population

6 control program” and that he was persecuted as a result of

7 that resistance. See id. (citation omitted). However, Chen

8 does not claim that he suffered any harm independent from

9 his wife’s abortion, or that he engaged in any resistance to

10 China’s population control program. As a result, the agency

11 correctly determined that he was unable to establish that he

12 suffered past persecution. See id. 

13 Chen also argues that he has a well-founded fear of

14 future persecution because he and his wife plan to have more

15 children, and if they have a second child, there is a

16 reasonable possibility that he will be sterilized. However,

17 the agency did not err in finding that Chen’s claim was too

18 speculative to establish an objectively reasonable fear of

19 persecution. See Jian Xing Huang v. INS, 421 F.3d 125, 128-

20 29 (2d Cir. 2005). 

21 Because Chen was unable to establish either past

22 persecution or a well-founded fear of future persecution,
4

1 the agency did not err in denying his application for

2 asylum. See 8 C.F.R. § 1208.13(b); Ramsameachire v.

3 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). Moreover,

4 because Chen was unable to show the objective likelihood of

5 persecution needed to make out an asylum claim, he was

6 necessarily unable to meet the higher standard required to

7 succeed on a claim for withholding of removal. See Paul v.

8 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Gomez v. INS,

9 947 F.2d 660, 665 (2d Cir. 1991). 

10 For the foregoing reasons, the petition for review is

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

12 removal that the Court previously granted in this petition

13 is VACATED, and any pending motion for a stay of removal in

14 this petition is DISMISSED as moot. Any pending request for

15 oral argument in this petition is DENIED in accordance with

16 Federal Rule of Appellate Procedure 34(a)(2), and Second

17 Circuit Local Rule 34.1(b).

18 FOR THE COURT: 

19 Catherine O’Hagan Wolfe, Clerk

20

21