Filed: Apr. 29, 2010
Latest Update: Feb. 22, 2020
Summary: 09-2293-ag Ye v. Holder BIA Brennan, IJ A097 449 578 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
Summary: 09-2293-ag Ye v. Holder BIA Brennan, IJ A097 449 578 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 NOT..
More
09-2293-ag
Ye v. Holder
BIA
Brennan, IJ
A097 449 578
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 29 th day of April, two thousand ten.
5
6 PRESENT:
7 ROGER J. MINER,
8 GUIDO CALABRESI,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11 _______________________________________
12
13 GUANG XIN YE,
14 Petitioner,
15
16 v. 09-2293-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23
24 FOR PETITIONER: John W. Reinhardt, Huntington, N.Y.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; David V. Bernal, Assistant
28 Director; Jennifer Paisner Williams,
29 Senior Litigation Counsel, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Petitioner Guang Xin Ye, a native and citizen of the
6 People’s Republic of China, seeks review of a May 4, 2009
7 order of the BIA affirming the November 8, 2007 decision of
8 Immigration Judge (“IJ”) Noel Brennan denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Guang
11 Xin Ye, No. A097 449 578 (B.I.A. May 4, 2009), aff’g No.
12 A097 449 578 (Immig. Ct. N.Y. City Nov. 8, 2007). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, this Court
16 reviews the decision of the IJ as supplemented by the BIA.
17 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
18 The applicable standards of review are well-established. We
19 review the agency’s factual findings under the substantial
20 evidence standard, upholding them if they are supported by
21 “reasonable, substantial and probative evidence in the
22 record.” Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir.
23 2009) (internal quotation marks omitted). We review de novo
2
1 questions of law and the agency’s application of law to
2 undisputed fact. Id.
3 The agency’s finding that Ye failed to establish past
4 persecution on account of any alleged “other resistance” to
5 the family planning policy is supported by the record. Ye
6 is not automatically eligible for refugee status based on
7 his wife’s forced abortion. See Shi Liang Lin v. U.S. Dep’t
8 of Justice,
494 F.3d 296, 309–10 (2d Cir. 2007). Instead,
9 he must demonstrate that he engaged in resistance to a
10 coercive population control program and suffered past
11 persecution or has a well-founded fear of future persecution
12 on account of such resistance. See
id.
13 The agency reasonably found that Ye’s testimony that he
14 was threatened with sterilization failed to establish that
15 he suffered past persecution on account of any such
16 resistance. See Gui Ci Pan v. U.S. Att’y Gen.,
449 F.3d
17 408, 412 (2d Cir. 2006) (noting that “[t]his Court, and
18 others, previously have rejected . . . claims [that]
19 ‘unfulfilled’ threats” constitute persecution). The agency
20 also reasonably found that any fear Ye had of returning to
21 China, including his fear of the repercussions should he
22 have more children in the future, was too speculative to
23 merit relief. See Jian Xing Huang v. I.N.S.,
421 F.3d 125,
3
1 129 (2d Cir. 2005). Accordingly, we need not reach Ye’s
2 argument that he resisted the policy because even if he did,
3 he was not persecuted and does not have a well-founded fear
4 of future persecution as a result. See Xia Fan Huang v.
5 Holder, 591 F.3d 124, 130 (2d Cir. 2010).
6 Because Ye was unable to meet his burden for asylum, he
7 necessarily failed to meet the higher burden required for
8 withholding of removal. See Paul v. Gonzales,
444 F.3d 148,
9 156 (2d Cir. 2006). Ye has waived any challenge to the
10 agency’s denial of CAT relief. See Yueqing Zhang v.
11 Gonzales,
426 F.3d 540, 541 n.1, 545 n.7.
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
25
4
