10-3846-ag

Wu v. Holder

BIA

Mulligan, IJ

A071 961 121

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

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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 20th day of April, two thousand twelve,

PRESENT:

ROSEMARY S. POOLER,

RICHARD C. WESLEY,

RAYMOND J. LOHIER, JR.,

 Circuit Judges. 

_____________________________________

JIAN KANG WU,

Petitioner, 

 v. 10-3846-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_______________________________________

FOR PETITIONER: Thomas V. Massucci, New York, 

New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Ethan B. Kanter, Senior

Litigation Counsel; John M. McAdams,

Jr., Attorney, Office of Immigration

Litigation, United States Department

of Justice, Washington, D.C.
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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.

Petitioner Jian Kang Wu, a native and citizen of the

People’s Republic of China, seeks review of an August 25,

2010 order of the BIA, affirming the October 15, 2008,

decision of an Immigration Judge (“IJ”), which denied his

application for asylum, withholding of removal, and relief

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

Kang Wu, No. A071 961 121 (B.I.A. Aug. 25, 2010), aff’g No.

A071 961 121 (Immig. Ct. N.Y. City Oct. 15, 2008). 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, i.e., minus

the adverse credibility determination not relied upon by the

BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

520, 522 (2d Cir. 2005). The applicable standards of review

are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin

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

Although Wu claims that he suffered past persecution

due to his wife’s forced sterilization, the forced
3

sterilization of one’s spouse does not qualify as per se

persecution and does not alone create a presumption of a

well-founded fear. See Shi Liang Lin v. U.S. Dep’t of

Justice, 494 F.3d 296, 308-09 (2d Cir. 2007); 8 C.F.R.

§ 1208.13(b)(1). Moreover, even if Wu demonstrated “other

resistance” to the family planning policy, his testimony

supported the agency’s determination that he did not suffer

harm rising to the level of persecution. See Jian Qiu Liu

v. Holder, 632 F.3d 820, 822 (2d Cir. 2011). Although Wu

claimed to fear economic persecution based on the imposition

of a 3,000 Renminbi fine, the agency reasonably determined

that Wu failed to establish that the amount was sufficiently

onerous to constitute persecution. See Guan Shan Liao v.

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

Having found that Wu did not demonstrate past

persecution, the agency also reasonably determined his fear

of future sterilization was not objectively reasonable,

noting that “[s]ince [his] wife has already been sterilized,

it would be hard to believe that the [Chinese] Government

would be looking for him for 17 years to sterilize him as

well.” See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d

Cir. 2005). Accordingly, the agency did not err in finding
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that Wu failed to meet his burden of showing that he was

persecuted or that he had an objectively reasonable fear

that he would be persecuted due to his violation of the

family planning policy. Similarly, in finding that Wu

failed to meet his burden in demonstrating a well-founded

fear of persecution on account of his Catholic religion, the

agency reasonably relied upon Wu’s testimony that his family

had been practicing Catholicism unharmed in China for over

20 years and his wife’s omission from her letter of

reference to any problems due to her religion. Cf. Melgar

de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999). 

Although Wu is correct that the BIA erred in applying

the REAL ID Act because his initial asylum application was

filed before May 11, 2005, remand is not required, because

we are “confident that the agency would reach the same

result upon a reconsideration cleansed of errors.” Li Hua

Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 107 (2d Cir.

2006). Wu does not point to any distinction between the

REAL ID Act and pre-REAL ID Act law that impacts his case,

nor is any relevant distinction apparent upon review. 

Moreover, the BIA explicitly stated its agreement with the

IJ’s burden finding, which did not include any reference to,
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or reliance on, the REAL ID Act. Because the agency did not

err in denying Wu’s application for asylum, it also did not

err in denying his application for withholding of removal. 

See Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991). 

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.

Any pending request for oral argument in this petition is

DENIED in accordance with Federal Rule of Appellate

Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk