09-4079-ag

Zhang v. Holder BIA Holmes-Sim

mons,IJ A094 798 076 

### UNITED STATES COURT OF AP PEALS FOR THE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY O RDER 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 C ircuit 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 Department2 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 1 0 for asylum, withholding of removal, and relief under the 1 1 Convention Against Torture (“CAT”). In re Ri Dong Zhang , 1 2 No. A094 798 076 (B.I.A. Sept. 2, 2009), aff’gNo. A094 798 1 3 076 (Immig. Ct. N.Y. City Jan. 8, 2008). We assume the 1 4 parties’ familiarity with the underlying facts and 1 5 procedural history in this case. 1 6 Under the circumstances of this case, we review the 1 7 decision of the IJ as supplemented by the BIA. See Yan Chen 18 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 1 9 applicable standards of review are well-established. 20 See8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey , 529 2 1 F.3d 99, 110 (2d Cir. 2008); Corovic v. Mukasey , 519 F.3d 2 2 90, 95 (2d Cir. 2008).3 1 Zhang does not contest the agency’s finding that he was 2 not per seeligible 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 1 0 described –- impregnating his wife, desiring to have more 1 1 children, and going into hiding –- do not amount to 1 2 resistance. Id. ; Matter of S-L-L- , 24 I. & N. Dec. 1, 10 1 3 (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). 1 5 Indeed, Zhang acknowledged that he never expressed any 1 6 displeasure to family planning officials about his wife's 1 7 abortion. 1 8 The agency also reasonably found that Zhang’s fear of 1 9 persecution was not well-founded. See Ramsameachire v. 20 Ashcroft , 357 F.3d 169, 178 (2d Cir. 2004) ; Diallo v. INS , 2 1 232 F.3d 279, 284 (2d Cir. 2000). Contrary to Zhang’s 2 2 argument, the BIA reasonably found that he did not provide 2 3 evidence demonstrating that “China sterilizes its citizens4 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 1 0 returned to his native country”) ; see also Diallo , 232 F.3d 1 1 at 285-86 (finding that this Court defers to the BIA’s rule 1 2 that “[w]hile consistent, detailed, and credible testimony 1 3 may be sufficient to carry the alien’s burden, evidence 1 4 corroborating his story, or an explanation for its absence, 1 5 may be required where it would reasonably be expected”). 1 6 Thus, the agency properly denied Zhang’s application for 1 7 asylum. 1 8 As Zhang based his application for asylum and 1 9 withholding of removal on the same factual predicate, it 2 0 follows that he failed to meet the higher burden of proof 2 1 with respect to withholding of removal. See Paul v. 22 Gonzales , 444 F.3d 148, 156 (2d Cir. 2006).5

Additionally, although we do have jurisdiction to 1 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 1 0 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) 1 2 (finding that a petitioner is not “entitled to CAT 1 3 protection based solely on the fact that he is part of the 1 4 large class of persons who have illegally departed China”). 1 5 Thus, the agency did not err in denying Zhang’s application 1 6 for CAT relief. Id . 1 7 For the foregoing reasons, the petition for review is 1 8 DENIED. As we have completed our review, any stay of 1 9 removal that the Court previously granted in this petition 2 0 is VACATED, and any pending motion for a stay of removal in 2 1 this petition is DENIED as moot. Any pending request for 2 2 oral argument in this petition is DENIED in accordance with6 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