09-0299-ag

Wang v. Holder

BIA

Nelson, IJ

 A079 669 247

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1

AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE

ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE

DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

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 25 day of November, two thousand nine. th 4

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 BARRINGTON D. PARKER,

9 GERARD E. LYNCH,

10 Circuit Judges.

11 _______________________________________

12

13 RONG FU WANG,

14 Petitioner, 

15

16 v. 09-0299-ag

17 NAC

18 UNITED STATES DEPARTMENT OF JUSTICE, 

19 ATTORNEY GENERAL ERIC H. HOLDER, JR., 

20 Respondent.

21 _______________________________________
 Although Wang is challenging the denial of relief in *

“Asylum-Only” proceedings, as opposed to an actual removal

order, this Court nonetheless has jurisdiction under 

8 U.S.C. § 1252(a)(1) because the denial of relief in these

circumstances is the functional equivalent of a removal

order. See Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir.

2006).

2

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

2 New York, New York.

3

4 FOR RESPONDENT: Tony West, Assistant Attorney

5 General; Carl McIntyre, Assistant

6 Director; Steven F. Day, Trial

7 Attorney, Office of Immigration

8 Litigation, United States Department

9 of Justice, Civil Division,

10 Washington, D.C.

11

12 UPON DUE CONSIDERATION of this petition for review of a

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

14 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

15 review is DENIED.

16 Petitioner Rong Fu Wang, a native and citizen of the

17 People’s Republic of China, seeks review of a December 23,

18 2008 order of the BIA affirming the May 11, 2007 decision of

19 Immigration Judge (“IJ”) Barbara A. Nelson denying his

20 application for asylum, withholding of removal, and relief

21 under the Convention Against Torture (“CAT”). In re Rong *

22 Fu Wang, No. A079 669 247 (B.I.A. Dec. 23, 2008), aff’g No.

23 A079 669 247 (Immig. Ct. N.Y. City, May 11, 2007). We

24 assume the parties’ familiarity with the underlying facts
3

1 and procedural history in this case.

2 When, as here, the BIA does not expressly “adopt” the

3 IJ’s decision, but its brief opinion closely tracks the IJ’s

4 reasoning, the Court may consider both the IJ’s and the

5 BIA’s opinions for the sake of completeness if doing so does

6 not affect the Court’s ultimate conclusion. See Jigme

7 W Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). e

8 review de novo questions of law and the application of law

9 to undisputed fact. See Bah v. Mukasey, 529 F.3d 99, 110

10 (2d Cir. 2008). We review the agency’s factual findings

11 under the substantial evidence standard. 8 U.S.C.

12 § 1252(b)(4)(B); see Dong Gao v. BIA, 482 F.3d 122, 126 (2d

13 Cir. 2007).

14 To the extent that Wang continues to assert that he may

15 be eligible for relief based on his fiancée’s forced

16 abortion, this Court has squarely rejected the notion that

17 aliens are per se eligible for relief based on the forced

18 sterilization of their partner. Shi Liang Lin v. U.S. Dep’t

19 of Justice, 494 F.3d 296, 309 (2d Cir. 2007). 

20 Nonetheless, an applicant may still establish his

21 eligibility for relief by showing either past persecution or

22 a well-founded fear of future persecution on account of his

23 own “resistance” to China’s family planning policy. 8 U.S.C.
4

1 § 1101(a)(42); see Shi Liang Lin, 494 F.3d at 313. Wang

2 argues that he suffered past persecution in the form of an

3 “onerous fine.” Although Wang correctly asserts that

4 economic deprivation may constitute persecution, see

5 Mirzoyan v. Gonzales, 457 F.3d 217 (2d Cir. 2006); In re

6 T-Z-, 24 I. & N. Dec. 163, 172-73 (BIA 2007), the record

7 evidence in this case does not indicate how the fine

8 impacted him or his family. See Guan Shan Liao v. U.S.

9 Dep’t. of Justice, 293 F.3d 61, 70 (2d Cir. 2002) (finding

10 no economic persecution where petitioner did not present any

11 testimony or other evidence of his income in China, his net

12 worth at the time of the fines, or any other facts that

13 would make it possible to evaluate his personal financial

14 circumstances in relation to the fines imposed by the

15 government). In the absence of such evidence we cannot

16 conclude that the agency erred in finding that Wang failed

17 to establish past persecution. 

18 Wang also argues that he established a well-founded

19 fear of future persecution based on his statement that

20 Chinese officials threatened him with “some charges.” Wang,

21 however, failed to detail how the vague threat of “some

22 charges” establishes that he reasonably fears persecution

23 upon return to China. See Jian Xing Huang v. INS, 421 F.3d
5

1 125, 129 (2d Cir. 2005) (holding that, absent “solid

2 support” in the record for the petitioner’s assertion that

3 he would be persecuted, his fear was “speculative at best”).

4 Accordingly, we find no clear error in the agency’s

5 denial of Wang’s application for asylum where he failed to

6 establish either past persecution or a well-founded fear of

7 future persecution. See 8 U.S.C. § 1101(a)(42). Because

8 Wang was unable to show the objective likelihood of

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

10 necessarily unable to meet the higher standard required to

11 succeed on his claim for withholding of removal because both

12 claims were based upon the same factual predicate. See Paul

13 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Wang does

14 not challenge the agency’s denial of his request for CAT

15 relief.

16 For the foregoing reasons, the petition for review is

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

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

19 Any pending request for oral argument in this petition is

20 DENIED in accordance with Federal Rule of Appellate

21 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

22 FOR THE COURT: 

23 Catherine O’Hagan Wolfe, Clerk

24

25

26 By____________________________