Bo Yang v. Holder , 434 F. App'x 28 ( 2011 )

10-2965-ag
Yang v. Holder
BIA
Chew, IJ
A077 322 698
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 23rd day of August, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 BO YANG, AKA BUO YANG,
14 Petitioner,
15
16 v. 10-2965-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Carl H. McIntyre, Jr.,
27 Assistant Director; Christina J.
28 Martin, Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 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 Bo Yang, a native and citizen of China,
6 seeks review of a June 24, 2010, order of the BIA affirming
7 the December 17, 2007, decision of Immigration Judge (“IJ”)
8 George T. Chew denying his applications for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Bo Yang, No. A077 322 698
11 (B.I.A. June 24, 2010), aff’g No. A077 322 698 (Immig. Ct.
12 N.Y.C. Dec. 17, 2007). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this
14 case.
15 Under the circumstances of this case, we review both
16 the BIA’s and the IJ’s decisions. See Zaman v. Mukasey, 514
17 F.3d 233, 237 (2d Cir. 2008). The applicable standards of
18 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
19 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 Yang contends that he established his eligibility for
21 asylum and withholding of removal based on his mistreatment
22 following his girlfriend’s abortions under China’s family
2
1 planning policy and his fear of future persecution due to
2 the fact that if returned to China he and his girlfriend
3 will have two children in violation of the policy.
4 The agency reasonably concluded that any past
5 mistreatment Zhang suffered did not establish his
6 eligibility for asylum or withholding of removal as he did
7 not establish it was on account of a protected ground. See
8 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)
9 (explaining that an applicant for asylum or withholding of
10 removal must show a nexus between his persecution and a
11 protected ground set forth in the Immigration and
12 Nationality Act); 8 U.S.C. § 1101(a)(42) (providing that a
13 person “who has been persecuted . . . for other resistance
14 to a coercive population control program, shall be deemed to
15 have been persecuted on account of political opinion”). The
16 agency reasonably concluded that Yang’s impregnation of his
17 girlfriend in violation of the family planning policy,
18 alone, did not establish that he was engaged in “other
19 resistance” to the policy. See Shi Liang Lin v. U.S. Dep’t
20 of Justice, 494 F.3d 296, 313 (2d Cir. 2007) (en banc)
21 (explaining that individuals whose spouses have become
22 pregnant in violation of the family planning policy have not
3
1 through that pregnancy demonstrated their own resistance to
2 China’s coercive population control measures used to enforce
3 the policy); see also Zhang v. Ashcroft, 395 F.3d 531, 532
4 (5th Cir. 2004) (“[M]erely impregnating one’s girlfriend is
5 not alone an act of ‘resistance.’”). Yang’s contention in
6 his brief that he impregnated his girlfriend in order to
7 resist the family planning policy does not compel a contrary
8 conclusion. See 8 U.S.C. § 1252(b)(4)(B).
9 Yang contends that he has a well-founded fear of
10 persecution because, if returned to China and reunited with
11 his girlfriend, they will have two children in violation of
12 the family planning policy. Yang did not raise this basis
13 for relief before the agency. Accordingly, we will not
14 address the issue. See Lin Zhong v. U.S. Dep’t of Justice,
15 480 F.3d 104, 107 n.1, 122 (2d Cir. 2007) (reaffirming that
16 this Court “may consider only those issues that formed the
17 basis for [the BIA’s] decision”).
18 Finally, the agency’s denial of Yang’s application for
19 CAT relief is supported by substantial evidence. The agency
20 reasonably found that Yang did not establish that he would
21 be tortured based on his past violation of the family
22 planning policy as his girlfriend, who also violated the
4
1 policy and remained in China, had not been tortured. See
2 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).
3 And the agency reasonably concluded that Yang’s contention
4 that he would be tortured because he left China illegally
5 did not establish a likelihood of torture as he did not
6 submit any particularized evidence supporting that claim.
7 See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156,
8 157-60 (2d Cir. 2005).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
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