Filed: Feb. 19, 2010
Latest Update: Mar. 02, 2020
Summary: 09-2309-ag Xie v. U.S. Justice Dept. BIA Morace, IJ A073 173 217 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
Summary: 09-2309-ag Xie v. U.S. Justice Dept. BIA Morace, IJ A073 173 217 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 (..
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09-2309-ag
Xie v. U.S. Justice Dept.
BIA
Morace, IJ
A073 173 217
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 19 th day of February, two thousand ten.
5
6 PRESENT:
7 ROBERT D. SACK,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11
12 _______________________________________
13
14 BAO GUO XIE,
15 Petitioner,
16
17 v. 09-2309-ag
18 NAC
19 U.S. JUSTICE DEPARTMENT,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Lawrence Banigan, Hempstead, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Richard Evans, Assistant
28 Director; Brooke M. Maurer, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, 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 Bao Guo Xie, a native and citizen of the
6 People’s Republic of China, seeks review of a May 11, 2009
7 order of the BIA affirming the August 1, 2007 decision of
8 Immigration Judge (“IJ”) Philip P. Morace denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Bao Guo
11 Xie, No. A073 173 217(B.I.A. May 11, 2009), aff’g No. A073
12 173 217 (Immig. Ct. N.Y. City Aug. 1, 2007). We assume the
13 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.
19 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
20 F.3d 510, 513 (2d Cir. 2009).
21 I. Asylum and Withholding of Removal
22 A. Past Persecution
23 Xie argues that he resisted China’s family planning
2
1 policy by: (1) taking his wife to have an IUD illegally
2 removed; (2) illegally impregnating his wife with their
3 second child; and (3) leaving China following word from his
4 wife that he was required to report for sterilization. We
5 need not reach the BIA’s determination that these acts did
6 not constitute “other resistance” pursuant to 8 U.S.C. §
7 1101(a)(42) sufficient to entitle Xie to asylum. Shi Liang
8 Lin, 494 F.3d at 314. Even assuming, as the IJ did, that
9 Xie demonstrated “minimal other resistance in this
10 particular case,” the agency reasonably found that the
11 unfulfilled threats of detention and sterilization, alleged
12 by petitioner, without more, did not constitute persecution.
13 See Gui Ci Pan v. U.S. Att’y Gen.,
449 F.3d 408, 412 (2d
14 Cir. 2006) (noting that “[t]his Court, and others,
15 previously have rejected . . . claims [that] ‘unfulfilled’
16 threats” constitute persecution).
17 B. Well-Founded Fear
18 The agency found that Xie provided no evidence that
19 Chinese officials would still enforce a sterilization order
20 against him following: (1) the successful sterilization of
21 his wife subsequent to his departure from China; and (2) his
22 divorce from his wife after leaving China. Xie argues that
23 practices in the United States and Cuba “illustrate [that]
3
1 the mere passage of time from the underlying violation does
2 not mean a government will drop its effort to apprehend and
3 punish the fugitive,” and challenges the agency’s reliance
4 on his divorce and his wife’s subsequent sterilization to
5 conclude he lacked a well-founded fear of persecution.
6 However, as Xie does not identify anything in the record to
7 demonstrate that the authorities have any continuing
8 interest in him, the agency’s finding that Xie’s fear is
9 speculative is supported by the record. See Jian Xing Huang
10 v. United States, 421 F.3d 125, 129 (2d Cir. 2005). Because
11 Xie was unable to meet his burden for asylum, he has
12 necessarily failed to meet the higher burden required for
13 withholding of removal. See Paul v. Gonzales,
444 F.3d 148,
14 156 (2d Cir. 2006).
15 II. CAT Relief
16 As the government argues, although Xie requests CAT
17 relief in his brief before this Court, he does not challenge
18 the basis of the IJ’s denial of CAT relief – that he did not
19 testify that he would be subject to torture – or otherwise
20 argue that any evidence established a likelihood of torture
21 upon return to China. Accordingly, any challenge to the
22 agency’s denial of CAT relief should be deemed waived. See
23 Yueqing
Zhang, 426 F.3d at 541 n.1, 545 n.7.
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9
10
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
15
5
