Filed: Sep. 23, 2010
Latest Update: Feb. 21, 2020
Summary: 09-4970-ag Yang v. US DOJ BIA Weisel, IJ A093 389 814 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 N
Summary: 09-4970-ag Yang v. US DOJ BIA Weisel, IJ A093 389 814 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 NO..
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09-4970-ag
Yang v. US DOJ
BIA
Weisel, IJ
A093 389 814
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 23 rd day of September, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 DENNY CHIN,
11 Circuit Judges.
12 _______________________________________
13
14 DING DI YANG,
15 Petitioner,
16
17 v. 09-4970-ag
18 NAC
19 U.S. DEPARTMENT OF JUSTICE,
20 ATTORNEY GENERAL, & IMMIGRATION AND
21 NATURALIZATION SERVICE
22 Respondents.
23 _______________________________________
24
25 FOR PETITIONER: Cora J. Chang, New York, New York.
26
27 FOR RESPONDENTS: Tony West, Assistant Attorney
28 General; Jennifer Levings, Senior
29 Litigation Counsel; Carmel A.
1 Morgan, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED, that the petition for review
9 is DENIED.
10 Ding Di Yang, a native and citizen of the People’s
11 Republic of China, seeks review of a November 9, 2009, order
12 of the BIA affirming the March 11, 2008, decision of
13 Immigration Judge (“IJ”) Robert D. Weisel, which denied his
14 application for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Dong Di
16 Yang, No. A093 389 814 (B.I.A. Nov. 9, 2009), aff’g No. A093
17 389 814 (Immig. Ct. N.Y. City Mar. 11, 2008). We assume the
18 parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 Under the circumstances of this case, we review the
21 IJ’s decision as supplemented by the BIA’s decision. See
22 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
23 applicable standards of review are well-established.
24 See 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t
25 of Homeland Sec.,
494 F.3d 281, 289 (2d Cir. 2007).
2
1 The refugee definition set forth at 8 U.S.C.
2 § 1101(a)(42) does not provide automatic refugee status to
3 the spouse of someone who was forced to undergo an abortion
4 or sterilization. Shi Liang Lin v. U.S. Dep’t of Justice,
5 494 F.3d 296, 309-12 (2d Cir. 2007) . Rather, for a spouse
6 to be eligible for relief, he must demonstrate:
7 (1) “resistance” to a coercive family planning policy, which
8 can cover “a wide range of circumstances, including
9 expressions of general opposition, attempts to interfere
10 with enforcement of government policy in particular cases,
11 and other overt forms of resistance to the requirements of
12 the family planning law”; and (2) that the applicant has
13 either “suffered harm amounting to persecution on account of
14 that resistance" or has a well-founded fear of such harm.
15
Id. at 313 (quoting Matter of S-L-L, 24 I. & N. Dec. 1, 10
16 (BIA 2006)).
17 Contrary to Yang’s assertion, the agency reasonably
18 determined that his anger over his wife’s forced abortion
19 and the animosity he felt towards family planning officials
20 constituted neither persecution to Yang personally nor
21 “other resistance” to China’s population control policy.
22 See
id., 494 F.3d at 309-12 (recognizing that “an individual
3
1 whose spouse undergoes, or is threatened with, a forced
2 abortion or involuntary sterilization may suffer a profound
3 emotional loss as a partner and a potential parent,” but
4 nonetheless holding that such individual is not per se
5 eligible for asylum). Moreover, even assuming that Yang’s
6 attempts to add the child he found abandoned to his
7 household registry constituted “other resistance” to China’s
8 family planning policy, the agency reasonably determined
9 that, because Yang was in no way harmed or mistreated for
10 trying to register the child, he failed to demonstrate that
11 he suffered any persecution as a result. See Pavlova v.
12 INS, 441 F.3d 82, 85 (2d Cir. 2006); Ivanishvili v. U.S.
13 Dep’t,
433 F.3d 332, 341-42 (2d Cir. 2006).
14 Moreover, the record does not support Yang’s contention
15 that he has a well-founded fear of sterilization in China
16 because, as the agency found, he remained in China without
17 incident for three years following his wife’s forced
18 abortion. Thus, the agency reasonably determined that
19 Yang’s fear of forced sterilization was not objectively
20 reasonable. See Ramsameachire v. Ashcroft,
357 F.3d 169,
21 178 (2d Cir. 2004).
4
1 Because Yang failed to challenge sufficiently the
2 agency’s denial of his applications for withholding of
3 removal and CAT relief before this Court, we deem any such
4 arguments waived. See Yueqing Zhang v. Gonzales, 426 F.3d
5 540, 541 n.1, 545 n.7 (2d Cir. 2005).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
5
