Filed: Oct. 25, 2010
Latest Update: Feb. 21, 2020
Summary: 09-5301-ag Xu v. Holder BIA Brennan, IJ A099 927 183 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: 09-5301-ag Xu v. Holder BIA Brennan, IJ A099 927 183 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..
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09-5301-ag
Xu v. Holder
BIA
Brennan, IJ
A099 927 183
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 25th day of October, two thousand ten.
PRESENT:
PIERRE N. LEVAL,
BARRINGTON D. PARKER,
PETER W. HALL,
Circuit Judges.
_______________________________________
ZUO GUI XU,
Petitioner,
v. 09-5301-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL
Respondent.
______________________________________
FOR PETITIONER: Weishan Wang, Capital Law Group, New
York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Richard M. Evans, Assistant
Director; Andrew Oliveira, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Zuo Gui Xu, a native and citizen of the
People’s Republic of China, seeks review of a November 30,
2009, order of the BIA affirming the January 24, 2008,
decision of Immigration Judge (“IJ”) Noel Brennan denying
Xu’s application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Zuo Gui Xu, No. A099 927 183 (B.I.A. Nov. 30, 2009), aff’g
No. A099 927 183 (Immig. Ct. N.Y. City Jan. 24, 2008). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review the
IJ’s decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); Jian Hui Shao v. Mukasey,
546 F.3d 138,
157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey,
529 F.3d
99, 110 (2d Cir. 2008).
Asylum and Withholding of Removal
I. Past Persecution
Xu is not per se eligible for asylum based on his
wife’s forced abortion. Shi Liang Lin v. U.S. Dep’t of
Justice, 494 F.3d 296, 309-10 (2d Cir. 2007). He may
qualify for relief by demonstrating that he: (1) engaged in
“resistance” to a coercive population control program; and
(2) suffered past persecution or has a well-founded fear of
future persecution on account of such resistance. See 8
U.S.C. § 1101(a)(42). Here, the agency assumed that Xu had
engaged in “other resistance” to the family planning policy
but found that the unfulfilled threats of sterilization and
fines that Xu received, considered in conjunction with the
emotional pain he suffered as a result of his wife’s
abortion, did not rise to the level of persecution. See Shi
Liang
Lin, 494 F.3d at 309; Gui Ci Pan v. U.S. Att’y Gen.,
449 F.3d 408, 412 (2d Cir. 2006).
2
Although Xu argues that this harm constitutes
persecution in the aggregate, there is no indication that
the agency failed to consider the cumulative effect of this
harm. Cf. Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d
281, 290 (2d Cir. 2007); Poradisova v. Gonzales,
420 F.3d
70, 79-80 (2d Cir. 2005). To the contrary, the agency
considered this harm and found that because Xu did not
indicate that he endured any physical harm or any emotional
harm aside from that which he suffered as a result of his
wife’s abortion, he failed to establish persecution based on
his resistance to the family planning policy. See Shi Liang
Lin, 494 F.3d at 309 (noting that the profound emotional
loss an individual may suffer following a spouse’s forced
abortion does not constitute persecution under the INA); Gui
Ci
Pan, 449 F.3d at 412 (claims based on unfulfilled threats
do not establish persecution).
II. Well-Founded Fear of Sterilization
Contrary to Xu’s argument, because the agency
determined that Xu did not suffer past persecution, he was
not entitled to a presumption that his life or freedom would
be threatened in the future if removed to China. See
8 C.F.R. § 1208.16(b)(1). Moreover, as the agency found
that Xu submitted no evidence indicating that “Chinese
authorities sought to arrest, detain, or otherwise punish
him in connection with his wife’s unauthorized pregnancy,”
and as he points this Court to no evidence contradicting
that finding, substantial evidence supports the agency’s
finding that he failed to establish a well-founded fear of
sterilization based on his “other resistance” to the family
planning policy. See Jian Xing Huang v. INS, 421 F.3d 125,
129 (2d Cir. 2005) (per curiam); Jian Hui
Shao, 546 F.3d at
172. Finally, to the extent Xu argues he established a
well-founded fear based on the threats of a fine, he
provided no evidence of his income in China, his net worth,
or any other facts that would make it possible to evaluate
his personal financial circumstances in relation to the
fines it was alleged the government would impose. See Guan
Shan Liao v. U.S. Dep’t of Justice,
293 F.3d 61, 70 (2d Cir.
2002).
Because Xu was unable to meet his burden to prove
eligibility for asylum, he necessarily failed to meet the
higher burden required for withholding of removal. See Paul
v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
3
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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