Filed: Jun. 01, 2011
Latest Update: Feb. 22, 2020
Summary: 10-2424-ag Zheng v. Holder BIA Chew, IJ A088 377 759 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: 10-2424-ag Zheng v. Holder BIA Chew, IJ A088 377 759 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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10-2424-ag
Zheng v. Holder
BIA
Chew, IJ
A088 377 759
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 1st day of June, two thousand eleven.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 CHANGMAO ZHENG,
14 Petitioner,
15
16 v. 10-2424-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Russell J. E. Verby, Senior
28 Litigation Counsel; Dalin R.
29 Holyoak, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 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 Changmao Zheng, a native and citizen of
6 China, seeks review of a May 20, 2010, decision of the BIA
7 affirming the June 12, 2008, decision of Immigration Judge
8 (“IJ”) George T. Chew denying Zheng’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Changmao Zheng,
11 No. A88 377 759 (B.I.A. May 20, 2010), aff’g No. A88 377 759
12 (Immig. Ct. N.Y. City June 12, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
18 the IJ’s findings under the “substantial evidence” standard,
19 while questions of law and the application of law to
20 undisputed fact, we review de novo. See 8 U.S.C.
21 § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510, 513
22 (2d Cir. 2009).
23 The government asserts that Zheng’s argument — that he
2
1 suffered past persecution on account of his resistance to
2 China’s family planning policy — is unexhausted. However,
3 because the BIA addressed the issue in its decision, any
4 failure to exhaust is excused. See Waldron v. INS, 17 F.3d
5 511, 515 n.7 (2d Cir. 1993).
6 Zheng argues that he suffered past persecution because
7 he was threatened with sterilization and the Chinese
8 government postponed his eligibility to obtain a legal
9 marriage, a prerequisite to obtaining a birth permit.
10 However, the unfulfilled threat of future sterilization does
11 not itself constitute past persecution. Gui Ci Pan v. U.S.
12 Att’y Gen.,
449 F.3d 408, 412-13 (2d Cir. 2006) (providing
13 that claims based on unfulfilled threats do not establish
14 past persecution). While the delay in official recognition
15 of Zheng’s wedding may have prevented Zheng and his wife
16 from legally having children, the agency reasonably found
17 that this delay did not rise to the level of persecution.
18 See Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d 332, 341
19 (2d Cir. 2006) (explaining that persecution requires that
20 the harm suffered be sufficiently severe, rising above “mere
21 harassment”).
22 Zheng further argues that the agency erred in finding
23 that he did not establish a likelihood of future persecution
3
1 and torture if he returns to China because he will be
2 forcibly sterilized if he has more children. This argument
3 is unavailing because Zheng did not provide any evidence to
4 demonstrate that he would be sterilized if he had more
5 children. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d
6 Cir. 2005) (per curiam) (holding that, absent “solid support
7 in the record” for the petitioner’s assertion that he would
8 be subjected to persecution in China because of his desire
9 to have more children, his fear was “speculative at best”).
10 Accordingly, the agency reasonably concluded that Zheng
11 failed to demonstrate the likelihood of future persecution
12 or torture necessary to establish his eligibility for
13 withholding of removal or CAT relief. See Ramsameachire v.
14 Ashcroft,
357 F.3d 169, 185 (2d Cir. 2004); Jian Xing Huang,
15 421 F.3d at 129.
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, the temporary stay
18 of removal that the Court previously granted in this
19 petition is VACATED, and the pending motion for a stay of
20 removal in this petition is DISMISSED as moot.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
4
