Filed: Dec. 22, 2010
Latest Update: Feb. 21, 2020
Summary: 09-4731-ag Weng v. Holder 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
Summary: 09-4731-ag Weng v. Holder 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 P..
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09-4731-ag
Weng v. Holder
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 22 nd day of December, two thousand ten.
5
6 PRESENT:
7 ROGER J. MINER,
8 JOSEPH M. McLAUGHLIN,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _______________________________________
12
13 YUMING WENG,
14 Petitioner,
15
16 v. 09-4731-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Dehai Zhang, Flushing, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Greg D. Mack, Senior
27 Litigation Counsel; Shahrzad Baghai,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
32
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 Yuming Weng, a native and citizen of the
6 People’s Republic of China, seeks review of a November 6, 2009
7 decision of the BIA affirming the February 8, 2008 decision of
8 Immigration Judge (“IJ”) Alan A. Vomacka denying Weng’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Yuming
11 Weng, No. A094 824 790 (B.I.A. Nov. 6, 2009), aff’g No. A094
12 824 790 (Immig. Ct. N.Y. City Feb. 8, 2008). We assume the
13 parties’ familiarity with the underlying facts and procedural
14 history in this case.
15 Under the circumstances of this case, we review the IJ’s
16 decision as modified by the BIA decision, i.e., minus the
17 arguments for denying relief that the BIA explicitly declined
18 to consider. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
19 F.3d 520, 522 (2d Cir. 2005). Here, because the BIA declined
20 to review the IJ’s adverse credibility determination, we
21 assume, without determining, Weng’s credibility. See Yan Chen
22 v. Gonzales,
417 F.3d 268, 271-72 (2d Cir. 2005). The
2
1 applicable standards of review are well-established. See 8
2 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546 F.3d
3 138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey,
529 F.3d
4 99, 110 (2d Cir. 2008).
5 I. Weng’s “Other Resistance” Claim
6 Although Weng is not per se eligible for asylum based on
7 his wife’s forced abortion, Shi Liang Lin v. U.S. Dep’t of
8 Justice,
494 F.3d 296, 309-10 (2d Cir. 2007), he may qualify
9 for relief by demonstrating that he: (1) engaged in
10 “resistance” to a coercive population control program; and (2)
11 suffered past persecution or has a well-founded fear of future
12 persecution on account of such resistance. 8 U.S.C. §
13 1101(a)(42).
14 Contrary to the government’s assertion that Weng waives
15 any argument challenging the agency’s determination that he
16 established past persecution, he argues that the cumulative
17 effect of the harm he endured constituted past persecution.
18 However, the IJ considered Weng’s allegations of harm in the
19 aggregate and reasonably concluded that unfulfilled threats
20 and a shove by family planning officials did not rise to the
21 level of persecution. See Ivanishvili v. U.S. Dep’t of
22 Justice,
433 F.3d 332, 341 (2d Cir. 2006) (providing that in
3
1 order to constitute persecution, the alleged past harm must be
2 sufficiently severe, rising above “mere harassment”); see also
3 Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir.
4 2006) (claims based on unfulfilled threats do not establish
5 persecution). Moreover, despite Weng’s argument that the IJ
6 failed to consider the emotional harm he suffered as a result
7 of his wife’s forced abortion in evaluating the cumulative
8 impact of the harm he endured, Weng did not raise the issue of
9 emotional harm at any point before the IJ or the BIA. We
10 therefore find no error in the IJ’s determination that Weng
11 failed to establish that he suffered past persecution. See
12
Ivanishvili, 433 F.3d at 341. Weng explicitly declines to
13 challenge the agency’s finding that he failed to establish a
14 well-founded fear of persecution based on his claim of other
15 resistance.
16 II. Weng’s Claim Based on his Wife’s Future Pregnancy
17 In addition to his claim based on his “other resistance”
18 to the family planning policy, Weng argues that he established
19 a well-founded fear of future persecution based on the
20 possibility that his wife may one day become pregnant.
21 Because Weng’s claim depends on the possibility that his wife
22 will become pregnant again, the agency reasonably determined
4
1 that any fear based on that possibility was not objectively
2 reasonable. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d
3 Cir. 2005) (per curiam) (holding that absent “solid support
4 in the record” for the petitioner’s assertion that he would be
5 subjected to persecution his fear was “speculative at best”).
6 Insofar as Weng challenges the agency’s denial of his
7 applications for withholding of removal and CAT relief based
8 on this claim, the agency’s finding that he was not eligible
9 for asylum was dispositive. See Paul v. Gonzales,
444 F.3d
10 148, 156 (2d Cir. 2006).
11 III. Due Process Claim
12 To the extent Weng argues that the BIA violated his due
13 process rights by retroactively applying Matter of J-S-, 24 I.
14 & N. Dec. 520 (AG 2008), to find that he was not per se
15 eligible for relief based on his wife’s forced abortion, the
16 BIA reasonably applied the law in effect at the time it
17 entered its decision. See 8 C.F.R. § 1003.1(d)(3)(ii); see
18 also N.L.R.B. v. Coca-Cola Bottling Co.,
55 F.3d 74, 78 (2d
19 Cir. 1995) (“Appellate courts ordinarily apply the law in
20 effect at the time of the appellate decision.”).
21
22
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
6
