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 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 1st 4 day of June, two thousand eleven.

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 DEBRA ANN LIVINGSTON,

9 DENNY CHIN,

10 Circuit Judges. 

11 _______________________________________

12

13 CHANGMAO ZHENG,

14 Petitioner, 15

16 v. 10-2424-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL

20 Respondent. 21 ______________________________________ 22

23 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New

24 York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Russell J. E. Verby, Senior

28 Litigation Counsel; Dalin R.

29 Holyoak, Trial Attorney, Office of

30 Immigration Litigation, Civil

31 Division, 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 Petitioner Changmao Zheng, a native and citizen of

6 China, seeks review of a May 20, 2010, decision of the BIA

7 affirming the June 12, 2008, decision of Immigration Judge

8 (“IJ”) George T. Chew denying Zheng’s application for

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Changmao Zheng,

11 No. A88 377 759 (B.I.A. May 20, 2010), aff’g No. A88 377 759

12 (Immig. Ct. N.Y. City June 12, 2008). 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 review the

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

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

18 the IJ’s findings under the “substantial evidence” standard,

19 while questions of law and the application of law to

20 undisputed fact, we review de novo. See 8 U.S.C.

21 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

22 (2d Cir. 2009). 

23 The government asserts that Zheng’s argument — that he
3

1 suffered past persecution on account of his resistance to

2 China’s family planning policy — is unexhausted. However,

3 because the BIA addressed the issue in its decision, any

4 failure to exhaust is excused. See Waldron v. INS, 17 F.3d

5 511, 515 n.7 (2d Cir. 1993).

6 Zheng argues that he suffered past persecution because

7 he was threatened with sterilization and the Chinese

8 government postponed his eligibility to obtain a legal

9 marriage, a prerequisite to obtaining a birth permit.

10 However, the unfulfilled threat of future sterilization does

11 not itself constitute past persecution. Gui Ci Pan v. U.S.

12 Att’y Gen., 449 F.3d 408, 412-13 (2d Cir. 2006) (providing

13 that claims based on unfulfilled threats do not establish

14 past persecution). While the delay in official recognition

15 of Zheng’s wedding may have prevented Zheng and his wife

16 from legally having children, the agency reasonably found

17 that this delay did not rise to the level of persecution. 

18 See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341

19 (2d Cir. 2006) (explaining that persecution requires that

20 the harm suffered be sufficiently severe, rising above “mere

21 harassment”). 

22 Zheng further argues that the agency erred in finding

23 that he did not establish a likelihood of future persecution
4

1 and torture if he returns to China because he will be

2 forcibly sterilized if he has more children. This argument

3 is unavailing because Zheng did not provide any evidence to

4 demonstrate that he would be sterilized if he had more

5 children. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d

6 Cir. 2005) (per curiam) (holding that, absent “solid support

7 in the record” for the petitioner’s assertion that he would

8 be subjected to persecution in China because of his desire

9 to have more children, his fear was “speculative at best”). 

10 Accordingly, the agency reasonably concluded that Zheng

11 failed to demonstrate the likelihood of future persecution

12 or torture necessary to establish his eligibility for

13 withholding of removal or CAT relief. See Ramsameachire v.

14 Ashcroft, 357 F.3d 169, 185 (2d Cir. 2004); Jian Xing Huang,

15 421 F.3d at 129. 

16 For the foregoing reasons, the petition for review is

17 DENIED. As we have completed our review, the temporary stay

18 of removal that the Court previously granted in this

19 petition is VACATED, and the pending motion for a stay of

20 removal in this petition is DISMISSED as moot. 

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe, Clerk

23

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