Filed: Aug. 20, 2012
Latest Update: Feb. 12, 2020
Summary: 11-3386-ag BIA Cao v. Holder Hom, IJ A088 372 097 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 NOTAT
Summary: 11-3386-ag BIA Cao v. Holder Hom, IJ A088 372 097 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 NOTATI..
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11-3386-ag BIA
Cao v. Holder Hom, IJ
A088 372 097
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 20th day of August, two thousand twelve.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 RAYMOND J. LOHIER, JR.,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 DONG GUANG CAO,
14 Petitioner,
15
16 v. 11-3386-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Vlad Kuzmin, New York, New York.
24
25 FOR RESPONDENT: Stuart T. Delery, Acting Assistant
26 Attorney General; Blair T. O’Connor,
27 Assistant Director; John B. Holt,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 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
4 is DENIED.
5 Dong Guang Cao, a native and citizen of the People’s
6 Republic of China, seeks review of an August 3, 2011 order
7 of the BIA affirming the November 25, 2009 decision of an
8 Immigration Judge (“IJ”) denying his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Dong Guang Cao, No. A088 372
11 097 (B.I.A. Aug. 3, 2011), aff’g No. A088 372 097 (Immig.
12 Ct. N.Y. City Nov. 25, 2009). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case. The applicable standards of review are well
15 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
16 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
17 Cao asserts that he was persecuted under China’s
18 coercive family planning policy because his wife was
19 subjected to forced abortions and he was beaten by family
20 planning authorities, who threatened to sterilize him.
21 Under 8 U.S.C. § 1101(a)(42), an individual is not per se
22 eligible for asylum based on a forced abortion of a spouse
23 or partner because “applicants can become candidates for
2
1 asylum relief only based on persecution that they themselves
2 have suffered or must suffer.” Shi Liang Lin v. U.S. Dep’t
3 of Justice, 494 F.3d 296, 308 (2d Cir. 2007) (en banc); see
4 also Matter of J-S-, 24 I. & N. Dec. 520, 536-37 (A.G. 2008)
5 (adopting the holding in Shi Liang Lin). Thus, in order to
6 establish eligibility for asylum, Cao must demonstrate
7 “‘other resistance to a coercive population control
8 program’” and that he was persecuted on account of that
9 resistance or has “‘a well founded fear that he or she will
10 be . . . subject to persecution for such . . . resistance.’”
11 Shi Liang
Lin, 494 F.3d at 309-10 (quoting 8 U.S.C. §
12 1101(a)(42)).
13 The agency reasonably concluded that Cao did not
14 establish past persecution on account of his resistance to
15 China’s family planning policies. Contrary to Cao’s
16 arguments, the agency addressed the cumulative effect of the
17 alleged incidents of harm, Poradisova v. Gonzales,
420 F.3d
18 70, 80 (2d Cir. 2005), and reasonably found that the harm
19 was insufficiently severe to constitute persecution because
20 Cao was not detained and suffered no physical injuries or
21 other lasting effects, see Jian Qiu Liu v. Holder,
632 F.3d
22 820, 821-22 (2d Cir. 2011) (per curiam); Gui Ci Pan v. U.S.
3
1 Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006) (per curiam);
2 Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d 332, 341-42
3 (2d Cir. 2006).
4 As the agency did not err in concluding that Cao failed
5 to establish past persecution, he is not entitled to a
6 presumption of future persecution. See 8 C.F.R.
7 §§ 1208.13(b)(1), 1208.16(b)(1). Moreover, the agency
8 reasonably concluded that Cao did not establish an
9 objectively reasonable well-founded fear of future
10 persecution independent of his past persecution claim based
11 on a lack of solid support in the record. See 8 C.F.R.
12 § 1208.13(b); Jian Xing Huang v. U.S. INS,
421 F.3d 125, 129
13 (2d Cir. 2005) (absent “solid support in the record,” a fear
14 of persecution is “speculative at best”). As the BIA noted,
15 the 2007 State Department Profile on Asylum Claims and
16 Country Conditions, which Cao submitted into evidence,
17 contradicts his argument that he is likely to be sterilized
18 if returned to China.
19 Cao argues the fact that his wife has not yet been
20 sterilized makes it more likely that he will be sterilized
21 if removed to China. However, the agency considered this
22 same argument, and reasonably reached the opposite
4
1 conclusion: lax enforcement of the family planning policy
2 diminishes the likelihood of Cao’s future forcible
3 sterilization. Accordingly, Cao has not shown that a
4 reasonable fact-finder would be compelled to conclude that
5 he presented objective evidence to support his assertion
6 that he would be sterilized. See Siewe v. Gonzales, 480
7 F.3d 160, 167 (2d Cir. 2007) (“Where there are two
8 permissible views of the evidence, the factfinder’s choice
9 between them cannot be clearly erroneous.”). Because Cao
10 did not establish a well-founded fear of persecution, he
11 necessarily cannot meet the more difficult burden of showing
12 it is more likely than not he will be persecuted if he
13 returns to China. Thus, the agency did not err in denying
14 asylum and withholding of removal. See 8 C.F.R.
15 §§ 1208.13(b), 1208.16(b).
16 Finally, Cao’s generalized argument that he established
17 eligibility for CAT relief, without citing the
18 administrative record, fails to compel reversal of the BIA’s
19 contrary conclusion. See Mu Xiang Lin v. U.S. Dep’t of
20 Justice,
432 F.3d 156, 160 (2d Cir. 2005). Moreover, as the
21 agency did not err in concluding that Cao failed to
22 establish past persecution or a well-founded fear of future
23 persecution if returned to China, it did not err in denying
5
1 asylum and withholding of removal, or CAT relief as all
2 three claims share the same factual predicate. Paul v.
3 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (withholding of
4 removal); Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d
5 520, 523 (2d Cir. 2005) (CAT relief).
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
16
17
6
