Taihui Ouyang v. Holder , 375 F. App'x 96 ( 2010 )

09-2649-ag
Ouyang v. Holder
BIA
Hom, IJ
A097 660 745
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 29 th day of April, two thousand ten.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_______________________________________
TAIHUI OUYANG, a.k.a. TAI HUI OU YANG,
Petitioner,
v. 09-2649-ag
NAC
ERIC H. HOLDER, Jr., U.S. ATTORNEY
GENERAL, UNITED STATES DEPARTMENT
OF JUSTICE,
Respondents.
_______________________________________
FOR PETITIONER: Dehai Zhang, Flushing, New York.
FOR RESPONDENTS: Tony West, Asst. Atty. General, Lyle
D. Jentzer, Senior Litigation Counsel,
John M. McAdams, Jr., Atty., Office of
Immigra tion Litigation, Civil
Division, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Petitioner Taihui Ouyang, a native and citizen of the
People’s Republic of China, seeks review of a June 15, 2009,
order of the BIA affirming the October 17, 2007, decision of
Immigration Judge (“IJ”) Sandy K. Hom, denying his application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Taihui Ouyang, No.
A097 660 745 (B.I.A. June 15, 2009), aff’g No. A097 660 745
(Immig. Ct. N.Y. City Oct. 17, 2007). We assume the parties’
familiarity with the underlying facts and procedural history
of the case.
Under the circumstances of this case, we review both the
BIA’s and IJ’s opinions. 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); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
The agency properly held that Ouyang was not eligible, as
a matter of law, for the relief he sought based on his wife’s
forced abortion. See Shi Liang Lin v. U.S. Dep’t of Justice,
494 F.3d 296 (2d Cir. 2007); see also Gui Yin Liu v. INS, 508
F.3d 716, 723 (2d Cir. 2007).
The BIA also reasonably concluded that even assuming
Ouyang demonstrated “other resistance,” he failed to
demonstrate past persecution or a well-founded fear of future
persecution on account of that resistance. See 8 U.S.C. §
1101(a)(42). Although Ouyang claimed that he suffered past
persecution, he did not allege that he was physically harmed
or mistreated by family planning officials. Ivanishvili v.
U.S. Dep’t of Justice, 433 F.3d 332, 340-41 (2d Cir. 2006).
Moreover, Ouyang failed to demonstrate that he suffered a
substantial economic disadvantage because he was fined 3,000
RMB. See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d
61, 69-70 (2d Cir. 2002) (citations omitted); see also Matter
of T-Z-, 24 I. & N. Dec. 163, 171-175 (BIA 2007).
Furthermore, the BIA did not err in finding that Ouyang failed
to demonstrate a reasonable possibility of future persecution
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in the absence of any record evidence to support his claim
that his fear was objectively reasonable. See Jian Xing Huang
v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
Finally, contrary to Ouyang’s argument, the BIA’s
application of Shi Liang Lin and Matter of J-S-, 24 I.&.N.
Dec. 520 (A.G. 2008), to his claims did not violate his due
process rights. See Shou Wei Jin v. Holder, 572 F.3d 392, 397
(7th Cir. 2009); Yu v. U.S. Atty. Gen., 568 F.3d 1328, 1333
(11th Cir. 2009). Indeed, the BIA was bound to apply the law
in effect at the time it entered its decision. See 8 C.F.R.
§ 1003.1(d)(3)(ii); see also NLRB v. Coca-Cola Bottling Co.,
55 F.3d 74, 78 (2d Cir. 1995) (“Appellate courts ordinarily
apply the law in effect at the time of the appellate
decision”). Moreover, Ouyang had the opportunity to present
his claim anew after we issued our decision in Shi Liang Lin.
See Burger v. Gonzales, 498 F.3d 131 (2d Cir. 2007) (finding
that “to establish a violation of due process, an alien must
show ‘that she was denied a full and fair opportunity to
present her claims’”) (citation omitted)).
Because Ouyang was unable to meet his burden of proof for
asylum, his withholding of removal claim necessarily fails.
See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
Because Ouyang failed to sufficiently challenge the agency’s
denial of his CAT claim, we deem any such argument waived.
See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7
(2d Cir. 2005).
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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