09-4079-ag

Zhang v. Holder

BIA

Holmes-Simmons, IJ

A094 798 076

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

4 New York, on the 17 day of September, two thousand ten. th

5

6 PRESENT:

7 GUIDO CALABRESI,

8 PETER W. HALL,

9 DENNY CHIN,

10 Circuit Judges. 

11 _______________________________________

12 ______________________________________

13

14 RI DONG ZHANG,

15 Petitioner, 

16

17 v. 09-4079-ag

18

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent.

22 ______________________________________

23

24 FOR PETITIONER: Gerald Karikari, New York, New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General, John S. Hogan, Senior

28 Litigation Counsel, Michael C.

29 Heyse, Trial Attorney, Office of

30 Immigration Litigation, Civil

31 Division, United States Department
2

1 of Justice, Washington, D.C.

2 UPON DUE CONSIDERATION of this petition for review of a

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

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

5 is DENIED.

6 Petitioner Ri Dong Zhang, a native and citizen of

7 China, seeks review of the September 2, 2009, order of the

8 BIA, affirming the January 8, 2008, decision of Immigration

9 Judge (“IJ”) Theresa Holmes-Simmons denying his application

10 for asylum, withholding of removal, and relief under the

11 Convention Against Torture (“CAT”). In re Ri Dong Zhang,

12 No. A094 798 076 (B.I.A. Sept. 2, 2009), aff’g No. A094 798

13 076 (Immig. Ct. N.Y. City Jan. 8, 2008). We assume the

14 parties’ familiarity with the underlying facts and

15 procedural history in this case.

16 Under the circumstances of this case, we review the

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

18 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

19 applicable standards of review are well-established. 

20 See 8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey, 529

21 F.3d 99, 110 (2d Cir. 2008); Corovic v. Mukasey, 519 F.3d

22 90, 95 (2d Cir. 2008).
3

1 Zhang does not contest the agency’s finding that he was

2 not per se eligible for relief based on his wife’s abortion. 

3 See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296,

4 309-10 (2d Cir. 2007); Matter of J-S-, 24 I. & N. Dec. 520

5 (AG 2008). Moreover, we find no error in the agency’s

6 denial of Zhang’s applications for relief based on his

7 alleged “resistance” to China’s coercive population control

8 program. See Shi Liang Lin, 494 F.3d at 312-13 (discussing

9 “resistance” claims). As the IJ found, the acts Zhang

10 described –- impregnating his wife, desiring to have more

11 children, and going into hiding –- do not amount to

12 resistance. Id.; Matter of S-L-L-, 24 I. & N. Dec. 1, 10

13 (BIA 2006) overruled on other grounds by Shi Liang Lin v.

14 U.S. Dep't of Justice, 494 F.3d 296, 309-10 (2d Cir. 2007). 

15 Indeed, Zhang acknowledged that he never expressed any

16 displeasure to family planning officials about his wife's

17 abortion. 

18 The agency also reasonably found that Zhang’s fear of

19 persecution was not well-founded. See Ramsameachire v.

20 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); Diallo v. INS,

21 232 F.3d 279, 284 (2d Cir. 2000). Contrary to Zhang’s

22 argument, the BIA reasonably found that he did not provide

23 evidence demonstrating that “China sterilizes its citizens
4

1 for not having registered marriage or for having a child

2 from an unregistered marriage,” as he presented evidence

3 only of his subjective fear, and did not provide objective

4 evidence that someone in his circumstances would be

5 sterilized if returned to China. See Ramsameachire, 357

6 F.3d at 178; Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d

7 Cir. 2005) (explaining that “objective reasonableness

8 entails a showing that a reasonable person in the

9 petitioner’s circumstances would fear persecution if

10 returned to his native country”); see also Diallo, 232 F.3d

11 at 285-86 (finding that this Court defers to the BIA’s rule

12 that “[w]hile consistent, detailed, and credible testimony

13 may be sufficient to carry the alien’s burden, evidence

14 corroborating his story, or an explanation for its absence,

15 may be required where it would reasonably be expected”). 

16 Thus, the agency properly denied Zhang’s application for

17 asylum. 

18 As Zhang based his application for asylum and

19 withholding of removal on the same factual predicate, it

20 follows that he failed to meet the higher burden of proof

21 with respect to withholding of removal. See Paul v.

22 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
5

1 Additionally, although we do have jurisdiction to

2 review the IJ’s denial of Zhang’s application for CAT

3 relief, as the BIA considered the IJ’s denial of such

4 relief, see Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d

5 Cir. 2006) (holding that where the BIA addresses issues not

6 raised by a petitioner, those issues are considered

7 exhausted and may be reviewed by this Court), contrary to

8 Zhang’s argument, he fails to point to any specific evidence

9 in support of his claim that he would likely be tortured

10 based on his illegal departure. See Mu Xiang Lin v. U.S.

11 Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005)

12 (finding that a petitioner is not “entitled to CAT

13 protection based solely on the fact that he is part of the

14 large class of persons who have illegally departed China”).

15 Thus, the agency did not err in denying Zhang’s application

16 for CAT relief. Id.

17 For the foregoing reasons, the petition for review is

18 DENIED. As we have completed our review, any stay of

19 removal that the Court previously granted in this petition

20 is VACATED, and any pending motion for a stay of removal in

21 this petition is DENIED as moot. Any pending request for

22 oral argument in this petition is DENIED in accordance with
6

1 Federal Rule of Appellate Procedure 34(a)(2), and Second

2 Circuit Local Rule 34.1(b).

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

5

6