10-2424-ag Zheng v. Holder BIA Chew, IJ A088 377 759 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE P** **RECEDENTIAL 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 1 st** **day of June, two thousand eleven.** 4 5 **PRESENT:** 6 **ROSEMARY S. POOLER,** 7 **DEBRA ANN LIVINGSTON,** 8 **DENNY CHIN,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **CHANGMAO ZHENG,** 13 Petitioner**,** 14 15 **v. 10-2424-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL** 19 Respondent **.** 20

**______________________________________** 21 22 **FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New** 23 **York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Russell J. E. Verby, Senior** 27 **Litigation Counsel; Dalin R.** 28 **Holyoak, Trial Attorney, Office of** 29 **Immigration Litigation, Civil** 30 **Division, 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 Petitioner Changmao Zheng, a native and citizen of 5 China, seeks review of a May 20, 2010, decision of the BIA 6 affirming the June 12, 2008, decision of Immigration Judge 7 (“IJ”) George T. Chew denying Zheng’s application for 8 asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Changmao Zheng, 10 No. A88 377 759 (B.I.A. May 20, 2010), aff’gNo. A88 377 759 11 (Immig. Ct. N.Y. City June 12, 2008). 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 review the 15 decision of the IJ as supplemented by the BIA. See Yan Chen 16 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). We review 17 the IJ’s findings under the “substantial evidence” standard, 18 while questions of law and the application of law to 19 undisputed fact, we review de novo

. See 8 U.S.C. 20 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 21 (2d Cir. 2009). 22 The government asserts that Zheng’s argument — that he 233 suffered past persecution on account of his resistance to 1 China’s family planning policy — is unexhausted. However, 2 because the BIA addressed the issue in its decision, any 3 failure to exhaust is excused. See Waldron v. INS, 17 F.3d 4 511, 515 n.7 (2d Cir. 1993). 5 Zheng argues that he suffered past persecution because 6 he was threatened with sterilization and the Chinese 7 government postponed his eligibility to obtain a legal 8 marriage, a prerequisite to obtaining a birth permit. 9 However, the unfulfilled threat of future sterilization does 10 not itself constitute past persecution. Gui Ci Pan v. U.S. 11 Att’y Gen. , 449 F.3d 408, 412-13 (2d Cir. 2006) (providing 12 that claims based on unfulfilled threats do not establish 13 past persecution). While the delay in official recognition 14 of Zheng’s wedding may have prevented Zheng and his wife 15 from legally having children, the agency reasonably found 16 that this delay did not rise to the level of persecution. 17 See Ivanishvili v. U.S. Dep’t of Justice , 433 F.3d 332, 341 18 (2d Cir. 2006) (explaining that persecution requires that 19 the harm suffered be sufficiently severe, rising above “mere 20 harassment”). 21 Zheng further argues that the agency erred in finding 22 that he did not establish a likelihood of future persecution 234 and torture if he returns to China because he will be 1 forcibly sterilized if he has more children. This argument 2 is unavailing because Zheng did not provide any evidence to 3 demonstrate that he would be sterilized if he had more 4 children.See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d 5 Cir. 2005) (per curiam) (holding that, absent “solid support 6 in the record” for the petitioner’s assertion that he would 7 be subjected to persecution in China because of his desire 8 to have more children, his fear was “speculative at best”). 9 Accordingly, the agency reasonably concluded that Zheng 10 failed to demonstrate the likelihood of future persecution 11 or torture necessary to establish his eligibility for 12 withholding of removal or CAT relief. See Ramsameachire v. 13 Ashcroft , 357 F.3d 169, 185 (2d Cir. 2004); Jian Xing Huang, 14 421 F.3d at 129. 15 For the foregoing reasons, the petition for review is 16 DENIED. As we have completed our review, the temporary stay 17 of removal that the Court previously granted in this 18 petition is VACATED, and the pending motion for a stay of 19 removal in this petition is DISMISSED as moot. 20
FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 23 24