Filed: Dec. 14, 2016
Latest Update: Mar. 03, 2020
Summary: 15-3520 Weng v. Lynch BIA Gordon-Uruakpa, IJ A205 027 301 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 T
Summary: 15-3520 Weng v. Lynch BIA Gordon-Uruakpa, IJ A205 027 301 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 TH..
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15-3520
Weng v. Lynch
BIA
Gordon-Uruakpa, IJ
A205 027 301
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 14th day of December, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 YUQUAN WENG,
14 Petitioner,
15
16 v. 15-3520
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Kai W. De Graaf, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; John S.
27 Hogan, Assistant Director; Daniel E.
28 Goldman, Senior Litigation Counsel,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Yuquan Weng, a native and citizen of the
6 People’s Republic of China, seeks review of an October 7, 2015
7 decision of the BIA, affirming an April 10, 2014 decision of
8 an Immigration Judge (“IJ”) denying Weng’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Yuquan Weng, No. A205 027 301
11 (B.I.A. Oct. 7, 2015), aff’g No. A205 027 301 (Immig. Ct. N.Y.C.
12 Apr. 10, 2014). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we review the IJ’s
15 decision as modified by the BIA. Xue Hong Yang v. U.S. Dep’t
16 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
17 standards of review are well established. See 8 U.S.C.
18 § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d
19 Cir. 2009). The dispositive issue before us is whether Weng
20 demonstrated past persecution or a well-founded fear of future
21 persecution.
2
1 I. Past Persecution
2 It is undisputed that Weng was not eligible for relief
3 solely based on the family planning measures (insertion of an
4 IUD and an abortion) to which his wife was subjected. See Shi
5 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-10 (2d
6 Cir. 2007). Weng could qualify for asylum, however, by
7 demonstrating that (1) he engaged in “other resistance” to the
8 family planning policy; and (2) as a direct result of that
9 resistance, he suffered harm rising to the level of persecution
10 or had a well-founded fear of suffering such harm. See 8 U.S.C.
11 § 1101(a)(42); Shi Liang
Lin, 494 F.3d at 313; see also Matter
12 of J-S-, 24 I. & N. Dec. 520, 523 (A.G. 2008).
13 The agency did not err in concluding that Weng failed to
14 demonstrate that he suffered harm rising to the level of
15 persecution. Past persecution can be established by harm other
16 than threats to life or freedom, including non-life-threatening
17 violence and physical abuse, Beskovic v. Gonzales,
467 F.3d 223,
18 226 n.3 (2d Cir. 2006), but the harm must be sufficiently severe,
19 rising above “mere harassment,” to meet that standard.
20 Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d 332, 341 (2d Cir.
3
1 2006). Weng’s testimony regarding past persecution rested on
2 one incident with family planning officials, in which (as he
3 recounts) they punched and kicked him and detained him for one
4 day. On cross-examination, Weng clarified that he was beaten
5 for “[o]nly a little bit of time” until officials could handcuff
6 him, and that he suffered bruises on his leg and back. This
7 evidence does not compel the conclusion that the harm Weng
8 suffered was sufficiently severe to constitute persecution.
9 See Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011)
10 (“[Petitioner] failed to establish past persecution because
11 substantial evidence supports the BIA’s finding that, prior to
12 his arrest and detention by local police, he suffered only minor
13 bruising from an altercation with family planning officials,
14 which required no formal medical attention and had no lasting
15 physical effect.”). Accordingly, the agency reasonably
16 determined that Weng was not persecuted in the past. See Mei
17 Fun Wong v. Holder,
633 F.3d 64, 72 (2d Cir. 2011) (“We have
18 emphasized that persecution is ‘an extreme concept that does
19 not include every sort of treatment our society regards as
20 offensive.’” (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,
21
416 F.3d 192, 198 (2d Cir. 2005))).
4
1
2 II. Well-Founded Fear of Future Persecution
3 The agency’s determination rejecting Weng’s asserted fear
4 of future persecution is also sound. Absent past persecution,
5 an applicant may establish eligibility for asylum by
6 demonstrating a well-founded fear of future persecution.
7 8 C.F.R. § 1208.13(b). Such an asserted fear must be both
8 subjectively credible and objectively reasonable.
9 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
10 To the extent the agency concluded that Weng’s fear of his
11 or his wife’s sterilization was speculative because it was based
12 on the possibility that his wife will become pregnant, it erred.
13 In Rui Ying Lin v. Gonzales,
445 F.3d 127 (2d Cir. 2006), we
14 vacated the agency’s finding that petitioner’s claimed fear of
15 forced sterilization was speculative. Petitioner there
16 already had two children, planned to have more, went to great
17 lengths to avoid being sterilized in China, and had her IUD
18 removed in the United States. We commented that “[i]n the
19 absence of some proof of [petitioner’s] infertility, it is not
20 clear what is speculative about her desire to have more children
5
1 or her ability to do so.” 445 F.3d at 136. Weng’s case
2 presents similar circumstances: although Weng and his wife have
3 only one son, Weng testified that he and his wife “really want
4 to have another child,” and, in fact, Weng’s wife became
5 pregnant with a second child after removing her IUD, but the
6 pregnancy was terminated at the instance of family planning
7 officials.
8 Here, however, unlike in Lin, the IJ also concluded that
9 Weng failed to show that his fear of sterilization was
10 objectively reasonable. In so concluding, the IJ relied on the
11 2013 State Department Country Report, which advises that the
12 majority of families in China are eligible to have more than
13 one child. In light of this report and because Weng has only
14 one child, the IJ concluded that Weng’s fear of sterilization
15 is not objectively reasonable. The IJ further based her
16 conclusion on the Report’s statement that violations of family
17 planning policies vary between regions and its failure to
18 identify any incidents of sterilization of the sort Weng feared
19 in Weng’s home province of Fujian.
20 We find no error in the IJ’s determinations in this regard.
21 Weng does not challenge the agency’s reliance on the 2013 State
6
1 Department Report in his opening brief. See Norton v. Sam’s
2 Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently
3 argued in the briefs are considered waived and normally will
4 not be addressed on appeal.”). Accordingly, and because the
5 IJ’s finding “is tethered to the evidentiary record,” we “accord
6 deference to the finding.” Siewe v. Gonzales,
480 F.3d 160,
7 169 (2d Cir. 2007).
8 Further, Weng cites no record evidence to support his
9 conclusory assertion that his fear of persecution under the
10 family planning policy is objectively reasonable. Rather, as
11 grounds for his fear, he asserts that Chinese law penalizes
12 failures (like his wife’s) to submit to a pregnancy examination;
13 he argues that local family planning officials are empowered
14 to broadly implement “remedial measures” to “stop” violators
15 of family planning laws; and he cites “Article 2” of Fujian
16 Province law, which Weng says states that “both husband and wife
17 are under the obligation to practice family planning.” He
18 cites no evidence, however, that similarly situated individuals
19 face persecution in Fujian Province. Instead he asserts that
20 his bad “track record” with family planning officials makes it
21 “more probable than not” that he will be targeted. This is
7
1 insufficient to establish a well-founded fear of persecution.
2 See 8 C.F.R. § 1208.13(a), (b)(1) (burden rests on applicant
3 to establish well-founded fear in absence of past persecution);
4 Jian Hui Shao v. Mukasey, 546 F.3d 138, 142-43, 148 (2d Cir.
5 2008) (noting that applicants must demonstrate that violation
6 of family planning policy would be punished in local area so
7 as to give rise to objectively reasonable fear of persecution).
8 The agency thus reasonably found that Weng failed to
9 demonstrate past persecution or a well-founded fear of future
10 persecution on account of the family planning policy. Because
11 all three claims are based on the same factual predicate, it
12 reasonably denied him asylum, withholding of removal, and CAT
13 relief. See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir.
14 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of removal
17 that the Court previously granted in this petition is VACATED,
18 and any pending motion for a stay of removal in this petition
19 is DISMISSED as moot. Any pending request for oral argument
20 in this petition is DENIED in accordance with Federal Rule of
8
1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
9
