10-2983-ag
    Ou v. Holder
                                                                                 BIA
                                                                  Holmes-Simmons, IJ
                                                                        A099 928 392
                     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 14th day of July, two thousand
    eleven.

    PRESENT:
                   ROBERT A. KATZMANN,
                   GERARD E. LYNCH,
                   DENNY CHIN,
                       Circuit Judges.

    ______________________________________
    SHOU CHUN OU,
             Petitioner,

                                                           10-2983-ag
                   v.                                      NAC


    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:               Norman Kwai Wing Wong, New York, New
                                  York.
    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Anthony C. Payne, Senior
                        Litigation Counsel; Lindsay E.
                        Williams, Attorney, Office of
                        Immigration Litigation, Civil
                        Division, 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 in part and GRANTED in part.

          Petitioner, Shou Chun Ou, a native and citizen of

China, seeks review of a July 8, 2010, decision of the BIA

affirming the September 18, 2008, decision of Immigration

Judge ("IJ") Theresa Holmes-Simmons, denying his application

for asylum, withholding of removal, and relief under the

Convention Against Torture ("CAT") and denying his motion to

remand.   In re Shou Chun ou, No. A099 928 392 (B.I.A. July

8, 2010), aff'g No. A099 928 392 (Immig. Ct. N.Y. City Sept.

18, 2008).   We assume the parties' familiarity with the

underlying facts and procedural history of the case.

          Under the circumstances of this case, we have

reviewed both the IJ's and the BIA's opinions "for the sake

of completeness."   Zaman v. Mukasey, 

, 237 (2d

Cir. 2008) (per curiam).   The applicable standards of review

are well-established.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin


                              2
Weng v. Holder, 

, 513 (2d Cir. 2009); Li Yong

Cao v. Dep't of Justice, 

, 156 (2d Cir.2005).

            The agency correctly concluded that Ou was not

eligible for relief based solely on his wife's forced

abortion.    See Shi Liang Lin v. U.S. Dep't of Justice, 

, 309-10 (2d Cir. 2007).    Nonetheless, even though

he was not per se eligible for relief on that basis, he

could have established his eligibility for relief by

demonstrating that he engaged in "other resistance" to the

family planning policy and that, as a result, he either

suffered past persecution or had a well founded fear of

future persecution.    8 U.S.C. § 1101(a)(42); Shi Liang 

.

            Even assuming arguendo that Ou had engaged in

"other resistance," the agency reasonably found that Ou did

not suffer past persecution, as he testified that he was

never arrested, beaten, fined, interrogated, sterilized, or

otherwise harmed by Chinese officials, and that he did not

have any interaction with family planning officials from the

time his wife had the abortion until he left China nine

years later.    Shi Liang 

.   The agency

also reasonably found that Ou did not establish a well-

founded fear of future persecution based on the possibility

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that he would have more children after returning to China,

as this fear was too speculative to establish eligibility

for relief.   See Jian Xing Huang v. INS, 

, 128-

29 (2d Cir. 2005) (per curiam) (holding that, absent "solid

support in the record" for the petitioner's assertion that

he would be subjected to forced sterilization, his fear was

"speculative at best").

          With respect to Ou's claims for withholding of

removal and CAT relief based on his purported illegal

departure from China, the agency reasonably concluded that

Ou failed to establish that it was more likely than not that

he would be persecuted or tortured if returned to China.

Because Ou's claim that he would be punished based on his

illegal departure from China was an assertion that he would

be punished under a generally applicable law and not

persecuted on account of a protected ground, he failed to

establish his eligibility for withholding of removal.   See

Saleh v. U.S. Dep't of Justice, 

, 239 (2d Cir.

1992).   Also, because Ou primarily relied on human rights

reports and did not present any particularized evidence that

he would be singled out for torture based on his illegal

departure, the agency did not err in finding that Ou failed

to establish his eligibility for CAT relief.   See Mu Xiang

                              4
Lin v. U.S. Dep't of Justice, 

, 159-60 (2d Cir.

2005); see also Mu-Xing Wang v. Ashcroft, 

, 143-

44 (2d Cir. 2003).

         In addition, the BIA did not abuse its discretion

in denying Ou’s motion to remand for failure to establish

prima facie eligibility for relief based on his conversion

to Christianity because Ou did not present any evidence that

authorities in China are either aware, or likely to become

aware, of his Christian religion or activities.   See

Poradisova v. Gonzales, 

, 78 (2d Cir. 2005)

(providing that an applicant attempting to reopen his case

based on changed circumstances must "establish prima facie

eligibility for asylum, i.e., 'a realistic chance' that he

will be able to establish eligibility"); Hongsheng Leng v.

Mukasey, 

, 143 (2d Cir. 2008) ("Put simply, to

establish a well-founded fear of persecution in the absence

of any evidence of past persecution, an alien must make some

showing that authorities in his country of nationality are

either aware of his activities or likely to become aware of

his activities.").




                             5
         The BIA did not, however, expressly consider Ou's

claim for relief under 8 C.F.R. § 208.16(b)(2), which

alleged a pattern or practice of persecution against

Christians or unauthorized church followers in China.        See

Mufied v. Mukasey, 

, 91-93 (2d Cir. 2007).        Ou

presented evidence to this effect that the agency appears to

have considered only his claim that he would be singled out

for persecution.     Rather than evaluate the evidence and

adjudicate the pattern-or-practice claim ourselves, we think

it is the "the better" course to remand this aspect of Ou's

petition to the BIA.     See 

         For the foregoing reasons, the petition for review

is DENIED in part, GRANTED in part, and REMANDED to the BIA

for further proceedings consistent with this order.     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.




                                6
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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