Guipeng Yang v. Holder , 394 F. App'x 782 ( 2010 )

09-4874-ag
Yang v. Holder
BIA
Chew, IJ
A099 936 206
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 30 th day of September, two thousand ten.
PRESENT:
GUIDO CALABRESI,
JOSÉ A. CABRANES,
PETER W. HALL,
Circuit Judges.
_______________________________________
GUIPENG YANG,
Petitioner,
v. 09-4874-ag
NAC
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Vincent S. Wong, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General; James A.
Hunolt, Senior Litigation Counsel; Jesse Lloyd
Busen, 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.
Guipeng Yang, a native and citizen of the People’s Republic of China, seeks
review of a October 29, 2009, order of the BIA affirming the January 18, 2008, decision
of Immigration Judge (“IJ”) George T. Chew, which denied his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”). In re
Guipeng Yang, No. A099 936 206 (B.I.A. Oct. 29, 2009), aff’g No. A099 936 206
(Immig. Ct. N.Y. City Jan. 18, 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 decision of the IJ as
supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
We review the agency’s factual findings, including adverse credibility determinations,
under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v.
Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo questions of law and the
application of law to undisputed fact. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
The agency reasonably found that the penalties Yang suffered were not severe
enough to constitute persecution because he and his wife were still able to provide for
their family, although at a lower standard of living, and they were permitted to retain their
employment. See In re T-Z-, 24 I. & N. Dec. 163, 170-71 (BIA 2007) (defining
persecution as including “the deliberate imposition of severe economic disadvantage or
the deprivation of liberty, food, housing, employment or other essentials of life.”); see
also Guan Shao Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 67 (2d Cir. 2002) (requiring at
least a showing of a “deliberate imposition of a substantial economic disadvantage”).
Because Yang did not point to any objective evidence, other than the alleged past
persecution, the agency also reasonably determined that Yang did not establish a well-
founded fear of future persecution based on his wife’s forced abortion in 2000 and the
economic penalties imposed on them. See Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.
2005) (holding that a fear is not objectively reasonable if it lacks “solid support” in the
record and is merely “speculative at best.”).
Contrary to Yang’s arguments, the record does not indicate that the agency failed
to cite legal standards in its decision or that it failed to consider any evidence in the
record. See Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (recognizing that the
Court has rejected the notion that the agency must “expressly parse or refute on the record
each individual argument or piece of evidence offered by the petitioner”); see also Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the
agency “has taken into account all of the evidence before [it], unless the record
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compellingly suggests otherwise”). Finally, to the extent Yang is attempting to add a new
basis for relief, his argument that he also fears persecution based on “his imputed political
opinion as a Falun Gong practitioner” is unexhausted. Zhong v. U.S. Dep’t of Justice, 480
F.3d 104, 124 (2d Cir. 2007) (describing the issue exhaustion requirement as an
“affirmative defense subject to waiver”).
Because Yang’s withholding of removal and CAT claims were based on the same
factual predicate as his asylum claim, the agency reasonably denied his application for
asylum, withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148,
156 (2d Cir. 2006) (noting that a withholding claim necessarily fails if the applicant is
unable to show the objective likelihood of persecution needed to make out an asylum
claim).
For the foregoing reasons, the petition for review is DENIED. As we have
completed our review, the 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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