Pursuant to Federal Rule of Appellate Procedure *

43(c)(2), Attorney General Eric H. Holder, Jr., is

automatically substituted for former Attorney General

Michael B. Mukasey as respondent in this case.

08-6034-ag

Zhang v. Holder

BIA

A077 957 646

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

for the Second Circuit, held at the Daniel Patrick Moynihan

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

New York, on the 26 day of March, two thousand ten. th

PRESENT:

GUIDO CALABRESI,

ROBERT A. KATZMANN,

DEBRA ANN LIVINGSTON,

 Circuit Judges.

_________________________________________

ZI YUAN ZHANG,

Petitioner, 

 v. 08-6034-ag

 NAC

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,*

Respondent.

_________________________________________

FOR PETITIONER: Alexander Kwok-Ho Yu, 
2

New York, N.Y.

FOR RESPONDENT: Tony West, Assistant Attorney

General; James A. Hunolt, Senior

Litigation Counsel; Christopher P.

McGreal, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, DC

UPON DUE CONSIDERATION of this petition for review of a

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

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

is DENIED.

Zi Yuan Zhang, a native and citizen of the People’s

Republic of China, seeks review of a November 10, 2008,

order of the BIA, affirming the August 8, 2003, decision of

Immigration Judge (“IJ”) Terry A. Bain, which denied his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Zi Yuan

Zhang, No. A077 957 646 (B.I.A. Nov. 10, 2008), aff’g No.

A077 957 646 (Immig. Ct. N.Y. City Aug. 8, 2003). We assume

the parties’ familiarity with the underlying facts and

procedural history in this case. 

Under the circumstances of this case, we review the

IJ’s decision as modified by the BIA decision. See Xue Hong

Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
3

2005). The applicable standards of review are wellestablished. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110

(2d Cir. 2008); Manzur v. U.S. Dep’t of Homeland Sec., 494

F.3d 281, 289 (2d Cir. 2007). 

Substantial evidence supports the agency’s denial of

Zhang’s application for relief. As the BIA had done, we

also assume Zhang to be credible for purposes of this

analysis. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72

(2d Cir. 2005). We therefore have no occasion to consider

Zhang’s challenge to the IJ’s adverse credibility

determination. 

Contrary to Zhang’s argument, the BIA did not exceed

its authority under the regulations in determining that he

did not establish his eligibility for relief. Rather than

conducting impermissible fact finding, the BIA applied the

appropriate legal standard to an uncontested set of facts. 

See 8 C.F.R. § 1003.1(d)(3)(ii); Matter of A-S-B-, 24 I. &

N. Dec. 493, 497 (BIA 2008). 

Zhang further argues that the BIA erred in finding that

he was not eligible for relief on account of his “other

resistance” to China’s family planning policies, because his

failure to turn in his girlfriend for a forced abortion
4

constituted such resistance. Even if Zhang’s conduct

constituted “other resistance,” the BIA’s determination that

he was not eligible for relief because he was not persecuted

on account of that resistance was not in error. See Shi

Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 313 (2d

Cir. 2007). Because the only harm Zhang claimed to have

suffered on account of his resistance to the family planning

policies was that family planning officials told him he

would be sterilized, the BIA did not err in its

determination that this unfulfilled threat did not amount to

past persecution. See Gui Ci Pan v. U.S. Att’y Gen., 449

F.3d 408, 412-13 (2d Cir. 2006). Zhang did not provide any

alternative basis for his fear of future persecution. Thus,

the BIA did not err in finding that he failed to establish

his eligibility for asylum and withholding of removal. See

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

Finally, because Zhang’s CAT claim was based on the

same factual predicate as his asylum and withholding claims,

the BIA’s finding that he had not met his burden of proof

was a sufficient basis to deny Zhang’s claim for asylum,

withholding, and CAT relief. See Paul v. Gonzales, 444 F.3d

148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
5

Justice, 426 F.3d 520, 523 (2d Cir. 2005). 

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

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

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk