         09-0319-ag
         Li v. Holder
                                                                                        BIA
                                                                                 Vomacka, IJ
                                                                                A079 138 320
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 11 th day of December, two thousand                nine.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                         Chief Judge,
 9                GUIDO CALABRESI,
10                DEBRA ANN LIVINGSTON,
11                         Circuit Judges.
12       ______________________________________
13
14       XI LI,
15                      Petitioner,
16
17                       v.                                     09-0319-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., 1 UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________


                  1
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric. H. Holder, Jr., is
         automatically substituted for former Acting Attorney General
         Mark Filip as respondent in this case.
 1   FOR PETITIONER:           Pro Se
 2
 3   F O R RESPONDENT:         Tony West, Assistant Attorney
 4                             General; Carl H. McIntyre, Jr.,
 5                             Assistant Director; Linda Y. Cheng,
 6                             Attorney, Office of Immigration
 7                             Litigation, United States Department
 8                             of Justice, Washington, D.C.
 9
10        UPON DUE CONSIDERATION of this petition for review of a

11   decision of the Board of Immigration Appeals (“BIA”), it is

12   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

13   review is DENIED.

14        Xi Li, a citizen of the People’s Republic of China,

15   seeks review of a January 6, 2009 order of the BIA affirming

16   the August 28, 2007 decision of Immigration Judge (“IJ”)

17   Alan A. Vomacka denying Li’s application for asylum,

18   withholding of removal, and relief under the Convention

19   Against Torture (“CAT”). In re Xi Li, No. A079 138 320 (BIA

20   Jan. 6, 2009), aff’g No. A079 138 320 (Immig. Ct. N.Y. City

21   Aug. 28, 2007).     We assume the parties’ familiarity with the

22   underlying facts and procedural history of the case.

23        Because the BIA issued an independent decision on

24   appeal, rather than relying on the IJ’s reasoning, we review

25   the BIA’s decision.     See Yan Chen v. Gonzales, 417 F.3d 268,

26   271 (2d Cir. 2005).     We review the agency’s findings of fact

27   under the substantial evidence standard.     8 U.S.C. §

                                        2
1    1252(b)(4)(B); see also Manzur v. DHS, 494 F.3d 281, 289 (2d

2    Cir. 2007).   Questions of law and the application of law to

3    undisputed fact are reviewed de novo.   See Salimatou Bah v.

4    Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

5        The BIA properly determined that Li was ineligible for

6    relief based solely on his wife’s forced abortion.     See Shi

7    Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 313 (2d

8    Cir. 2007) (en banc) (holding that the definition of

9    “refugee” under 8 U.S.C. § 1101(a)(42) does not extend

10   automatically to the partners of individuals who have been

11   forcibly sterilized or forced to have an abortion).

12   Further, the BIA reasonably concluded that Li failed to

13   demonstrate his eligibility for relief on account of his own

14   “other resistance” to China’s family planning policy.     See 8

15   U.S.C. § 1101(a)(42).

16       Li testified that when he was threatened with

17   sterilization, he cursed at family planing officials, and

18   went into hiding.   However, even if these actions

19   constituted resistance, see Matter of S-L-L-, 24 I. & N.

20   Dec. 1, 10-11 (BIA 2006), Li was never arrested, mistreated,

21   or physically harmed on account of that resistance.     See

22   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 340-41


                                   3
1    (2d Cir. 2006) (finding that harm must be sufficiently

2    severe and rise above “mere harassment” in order to

3    constitute persecution).     The BIA thus reasonably concluded

4    that Li had not suffered past persecution.

5        Further, Li failed to establish that he has a fear of

6    future persecution on account of those events because, after

7    he went into hiding, he returned to his home on multiple

8    occasions for more than a year, his wife became pregnant

9    again during this time, and he was never approached by

10   family planning officials.     See Jian Xing Huang v. INS, 421

11   F.3d 125, 129 (2d Cir. 2005) (per curiam) (holding that,

12   absent solid support in the record for the petitioner’s

13   assertion that he would be subjected to persecution, his

14   fear was “speculative at best”).     The BIA also properly

15   noted that Li’s wife, who has had three illegal pregnancies,

16   remains unharmed in China, further undermining his claim,

17   see Melgar de Torres v. Reno, 191 F.3d 307, 313-14 (2d Cir.

18   1999) (finding that the alien’s claim of a well-founded fear

19   was diminished where her mother and daughters continued to

20   live in her native country unharmed).

21       Accordingly, because Li established neither past

22   persecution nor a well-founded fear of future persecution,


                                     4
1    there was no error in the agency’s denial of his application

2    for asylum.     Further, because Li was unable to show the

3    objective likelihood of persecution needed to make out an

4    asylum claim, he was necessarily unable to meet the higher

5    standard required to succeed on a claim for withholding of

6    removal.     See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

7    2006).     Even construing broadly his pro se brief, see

8    Marmolejo v. United States, 196 F.3d 377, 378 (2d Cir. 1999)

9    (per curiam), Li has waived any challenge to the agency’s

10   denial of his request for CAT relief.

11       For the foregoing reasons, the petition for review is

12   DENIED.     As we have completed our review, any stay of

13   removal that the Court previously granted in this petition

14   is VACATED, and any pending motion for a stay of removal in

15   this petition is DISMISSED as moot.     Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2), and Second

18   Circuit Local Rule 34(b).
19
20
21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
24
25                                 By:___________________________




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