#### CHANGMAO ZHENG, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 10-2424-ag.

United States Court of Appeals, Second Circuit.

June 1, 2011.

*87Oleh R. Tustaniwsky, Brooklyn, NY, for Petitioner.

Tony West, Assistant Attorney General; Russell J.E. Verby, Senior Litigation Counsel; Dalin R. Holyoak, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

PRESENT: ROSEMARY S. POOLER, DEBRA ANN LIVINGSTON, and DENNY CHIN, Circuit Judges.

*SUMMARY ORDER*

Petitioner Changmao Zheng, a native and citizen of China, seeks review of a May 20, 2010, decision of the BIA affirming the June 12, 2008, decision of Immigration Judge (“IJ”) George T. Chew denying Zheng’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). *In re Changmao Zheng,*No. [ AXX XXX XXX ] (B.I.A. May 20, 2010), *aff'g*No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City June 12, 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 decision of the IJ as supplemented by the BIA. *See Yan Chen v. Gonzales,*417 F.3d 268, 271 (2d Cir.2005). We review the IJ’s findings under the “substantial evidence” standard, while questions of law and the application of law to undisputed fact, we review *de novo. See*8 U.S.C. § 1252(b)(4)(B); *Yanqin Weng v. Holder,*562 F.3d 510, 513 (2d Cir.2009).

The government asserts that Zheng’s argument — that he suffered past persecution on account of his resistance to China’s family planning policy — is unexhausted. However, because the BIA addressed the issue in its decision, any failure to exhaust is excused. *See Waldron v. INS,*17 F.3d 511, 515 n. 7 (2d Cir.1993).

Zheng argues that he suffered past persecution because he was threatened with sterilization and the Chinese government postponed his eligibility to obtain a *88legal marriage, a prerequisite to obtaining a birth permit. However, the unfulfilled threat of future sterilization does not itself constitute past persecution. *Gui Ci Pan v. U.S. Att’y Gen.,*449 F.3d 408, 412-13 (2d Cir.2006) (providing that claims based on unfulfilled threats do not establish past persecution). While the delay in official recognition of Zheng’s wedding may have prevented Zheng and his wife from legally having children, the agency reasonably found that this delay did not rise to the level of persecution. *See Ivanishvili v. U.S. Dep’t of Justice,*433 F.3d 332, 341 (2d Cir.2006) (explaining that persecution requires that the harm suffered be sufficiently severe, rising above “mere harassment”).

Zheng further argues that the agency erred in finding that he did not establish a likelihood of future persecution and torture if he returns to China because he will be forcibly sterilized if he has more ehildi’en. This argument is unavailing because Zheng did not provide any evidence to demonstrate that he would be sterilized if he had more children. *See Jian Xing Huang v. INS,*421 F.3d 125, 129 (2d Cir. 2005) (per curiam) (holding that, absent “solid support in the record” for the petitioner’s assertion that he would be subjected to persecution in China because of his desire to have more children, his fear was “speculative at best”). Accordingly, the agency reasonably concluded that Zheng failed to demonstrate the likelihood of future persecution or torture necessary to establish his eligibility for withholding of removal or CAT relief. *See Ramsameachire v. Ashcroft,*357 F.3d 169, 185 (2d Cir.2004); *Jian Xing Huang,*421 F.3d at 129.

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the temporary stay of removal that the Court previously granted in this petition is VACATED, and the pending motion for a stay of removal in this petition is DISMISSED as moot.