Filed: Jul. 07, 2011
Latest Update: Feb. 22, 2020
Summary: 10-3169-ag Wang v. Holder BIA Videla, IJ A099 535 726 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: 10-3169-ag Wang v. Holder BIA Videla, IJ A099 535 726 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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10-3169-ag
Wang v. Holder
BIA
Videla, IJ
A099 535 726
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 7th day of July, two thousand eleven.
5
6 PRESENT:
7 ROGER J. MINER,
8 GUIDO CALABRESI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 XIU YUNG WANG,
14 Petitioner,
15
16 v. 10-3169-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Jed S. Wasserman, Kuzmin &
24 Associates, P.C., New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Keith I. McManus, Senior
29 Litigation Counsel; Joseph A.
30 O’Connell, Attorney, Office of
31 Immigration Litigation, Civil
32 Division, United States Department
33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Petitioner Xiu Yung Wang, a native and citizen of the
6 People’s Republic of China, seeks review of a July 20, 2010
7 decision of the BIA, affirming the October 23, 2008 decision
8 of Immigration Judge (“IJ”) Gabriel C. Videla, denying
9 Wang’s application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Xiu Yung Wang, No. A099 535 726 (B.I.A. July 20, 2010),
12 aff’g No. A099 535 726 (Immigr. Ct. N.Y. City Oct. 23,
13 2008). We assume the parties’ familiarity with the
14 underlying facts and procedural history of the case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as modified and supplemented by the BIA. See
17 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
18 (2d Cir. 2005); Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d
19 Cir. 2005). The applicable standards of review are well-
20 established. See 8 U.S.C. § 1252(b)(4)(B) (2006); Yanqin
21 Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
22
2
1 I. Past Persecution
2 The record supports the agency’s determination that
3 Wang failed to demonstrate that she suffered past
4 persecution. Although Wang argues that she suffered past
5 persecution because Chinese officials twice interfered with
6 her religious gatherings and threatened her to the extent
7 that she could not practice her Christian religion without
8 fear of punishment, the BIA reasonably found that the
9 incidents she described did not rise to the level of
10 persecution. Because Wang was not harmed or detained during
11 either of these incidents, and because the courts have
12 generally rejected claims of past persecution based on
13 unfulfilled threats alone, see Guan Shan Liao v. U.S. Dep’t
14 of Justice, 293 F.3d 61, 70 (2d Cir. 2002) (stating that a
15 “threat of detention . . . itself . . . is not past
16 persecution”), a reasonable fact-finder would not be
17 compelled to find that Wang met her burden of establishing
18 either that any threats she received from Chinese officials
19 rose to the level of persecution or that she was unable to
20 practice her religion. See Diallo v. INS,
232 F.3d 279, 287
21 (2d Cir. 2000) (holding that this Court will “reverse [the
22 BIA] only if no reasonable fact-finder could have failed to
3
1 find the past persecution or fear of future persecution
2 necessary to sustain the petitioner’s burden”).
3 II. Well-Founded Fear of Persecution
4 Because Wang failed to demonstrate that she suffered
5 past persecution, she was not entitled to a presumption of a
6 well-founded fear of future persecution. See 8 C.F.R.
7 § 1208.13(b) (2011). It was not improper for the agency to
8 consider Wang’s claim of a well-founded fear of persecution
9 to be diminished because she testified that her parents and
10 brother were Christian and lived in China and presented no
11 evidence to indicate that they were being harmed by the
12 Chinese government. See Melgar de Torres v. Reno, 191 F.3d
13 307, 313 (2d Cir. 1999) (finding that where asylum
14 applicant’s mother and daughters continued to live in
15 petitioner’s native country, her well-founded fear claim was
16 diminished). Although Wang explains that her family has
17 remained unharmed because, unlike her, they attend the
18 patriotic church and not house gatherings, Wang testified
19 that her parents were present at the first gathering that
20 was interrupted by officials. Thus, the BIA reasonably
21 found that Wang’s family was similarly situated to her, and
22 it did not err in finding that her claim of a well-founded
23 fear of persecution was diminished. See
id.
4
1 Furthermore, Wang does not point to any evidence
2 corroborating her fear of future persecution due to her
3 religion. The agency reasonably concluded that she failed
4 to demonstrate a well-founded fear because her father’s
5 letter indicated only that he feared harm would come to Wang
6 due to her illegal departure. Additionally, Wang stated to
7 a Border Patrol agent that she came to the United States to
8 earn money and did not fear returning to China. See Jian
9 Xing Huang v. INS,
421 F.3d 125, 129 (2d Cir. 2005) (holding
10 that a fear is not objectively reasonable if it lacks “solid
11 support” in the record and is merely “speculative at best”).
12 Lastly, there is no merit to Wang’s contention that the
13 BIA failed to consider the 2008 State Department Country
14 Report. See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d
15 315, 337 n.17 (2d Cir. 2006) (presuming that the agency “has
16 taken into account all of the evidence before [it], unless
17 the record compellingly suggests otherwise”). Although the
18 BIA did not specifically address the report, the BIA’s
19 decision indicates that it considered Wang’s evidence in
20 some detail. Moreover, although the report provides that
21 the Chinese government’s repression of religious freedom has
22 intensified in some areas, it also indicated that, in some
23 regions, house churches are able to meet openly.
5
1 Accordingly, there is nothing in the record that suggests
2 that the BIA failed to consider the report. See Xiao Ji
3 Chen, 471 F.3d at 337 n.17.
4 Because Wang is unable to show the objective likelihood
5 of persecution needed to make out an asylum claim based on
6 her Christian religion, she necessarily is unable to meet
7 the higher standard required to succeed on a claim for
8 withholding of removal or CAT relief, as all three claims
9 rest on the same factual predicate. See Paul v. Gonzales,
10
444 F.3d 148, 155–56 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2) and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
6
