    09-2913-ag
    Cheng v. Holder
                                                                                   BIA
                                                                              Weisel, IJ
                                                                          A 099 661 835
                       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 9 th day of March, two thousand ten.

    PRESENT:
             JOSÉ A. CABRANES,
             BARRINGTON D. PARKER,
             REENA RAGGI,
                    Circuit Judges.
    ______________________________________

    YOU XING CHENG,
             Petitioner,

                      v.                                   09-2913-ag
                                                           NAC
    ERIC H. HOLDER, JR., U.S. ATTORNEY
    GENERAL,
             Respondent.
    ______________________________________
    FOR PETITIONER:               David A. Bredin, New York, New York.
    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Terri J. Scadron, Assistant
                                  Director; Greg D. Mack, Senior
                                  Litigation Counsel; Lauren Ritter,
                                  Law Clerk, Office of Immigration
                                  Litigation, 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.

      Petitioner You Xing Cheng, a native and citizen of China,

seeks review of the June 23, 2009 order of the BIA affirming

the October 10, 2007 decision of Immigration Judge (“IJ”)

Robert      D.    Weisel       denying      his     application      for    asylum,

withholding        of   removal,      and       relief    under   the   Convention

Against Torture (“CAT”).              In re You Xing Cheng, No. A 099 661

835 (B.I.A. June 23, 2009), aff’g No. A 099 661 835 (Immig.

Ct.   N.Y.       City   Oct.    10,   2007).         We    assume   the    parties’

familiarity with the underlying facts and procedural history

in this case.

      Under the circumstances of this case, we review both the

IJ’s and the BIA’s decisions.                   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      correctly          concluded      that     Cheng was not

eligible for asylum based on his wife’s forced abortion and

IUD insertion.          See Shi Liang Lin v. U.S. Dep’t of Justice,



                                            2
494 F.3d 296, 309-10 (2d Cir. 2007).                 Nonetheless, even though

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

could    still     qualify   for    relief      by    demonstrating     that    he

engaged in “other resistance” to the family planning policy

and that he was persecuted or had a well-founded fear of

persecution on account of that resistance.                        See 8 U.S.C.

§ 1101(a)(42); Shi Liang Lin, 494 F.3d at 313.                        Assuming,

arguendo, that Cheng established the requisite resistance, the

agency nevertheless reasonably determined that he failed to

demonstrate related past or feared persecution.

       Although     Cheng    was    insulted,        pushed,    and   kicked    by

authorities when he attempted to prevent them from taking his

wife    for   an   IUD   insertion       and    forced    abortion,     the    BIA

reasonably determined that this physical mistreatment did not

manifest past persecution, especially because Cheng was not

detained at the time.          Cf. Beskovic v. Gonzales, 467 F.3d 223,

226 (2d Cir. 2006) (observing that physical mistreatment “must

be assessed with regard to the context in which [it] occurs,”

and that conduct “that, in other contexts, could fairly be

characterized       as   the    ‘mere        annoyance    and     distress’     of

harassment, can take on an entirely different character when

officially       inflicted     on   an   individual       while    detained     on



                                         3
account of protected grounds” (internal citation omitted)).

    The BIA also reasonably determined that although family

planning    officials            continued        to   inquire   as   to     Cheng’s

whereabouts, this alone did not support a well-founded fear

that he would be persecuted if returned to China.                           See Jian

Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding

that absent “solid support in the record” for petitioner’s

claim   that    he       would    be   persecuted        under   family     planning

policy, his fear was “speculative at best”).                       Indeed, Cheng

did not show that authorities would do anything more than fine

him upon his return.               See Guan Shan Liao v. U.S. Dep’t of

Justice,    293     F.3d    61,     70   (2d      Cir.   2002)   (observing       that

economic deprivation may constitute persecution only where

applicant      offers        proof       of       “deliberate     imposition        of

substantial economic disadvantage”); Saleh v. U.S. Dep't of

Justice, 962 F.2d 234, 239 (2d Cir. 1992) (“[P]unishment for

violation      of    a    generally      applicable       criminal    law    is    not

persecution.”).

    The agency’s denial of Cheng’s application for CAT relief

was similarly supported by the record. 1                    Cheng contends that



        1
        Cheng abandons his withholding of removal claim
  before this Court.

                                              4
the     IJ     failed   to   consider    evidence    regarding      country

conditions or address the possibility of future torture if he

were returned to China.         To the contrary, the IJ explicitly

addressed the possibility that Cheng could be tortured in the

future, finding that “[a]lthough it is indicated that police

have come to his home repeatedly to look for him, seeking to

arrest him, there is no indication that they want to torture

him.”        In re Cheng You Xing, No. A 099 661 835, at 9.            This

finding was not in error.          See Jian Xing Huang, 421 F.3d at

129; see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

315, 342 (2d Cir. 2006) (holding that the weight afforded

evidence lies largely within the IJ’s discretion).                  The IJ

also properly found that Cheng failed to demonstrate that he

would be tortured due to his illegal departure.              See Mu Xiang

Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.

2005); Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.

2003).

      Furthermore,      although   the   IJ   did   not   discuss   country

conditions evidence in detail, we do not require an IJ to do

so.     See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.

2006) (observing that BIA need not “expressly parse or refute

on the record each individual argument or piece of evidence


                                     5
offered     by     the    petitioner”          (internal      quotation         marks

omitted));       see   also   Xiao   Ji       Chen,   471    F.3d   at    337    n.17

(presuming that agency “has taken into account all of the

evidence before [it], unless the record compellingly suggests

otherwise”).       Insofar as Cheng faults the agency for relying

on “biased and outdated” country conditions reports, Pet’r’s

Br. at 30, the 2007 State Department report in the record was

not outdated.          Indeed, the IJ rendered his oral decision in

October 2007, the same year the report was released.                        Cheng’s

unamplified claim that such reports are biased is equally

meritless    in    light      of   our    holding     that    State      Department

reports are “probative” and that the agency does not err in

relying on them.         See Tu Lin v. Gonzales,             446 F.3d 395, 400

(2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, 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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