         11-2631-ag
         Gao v. Holder
                                                                                        BIA
                                                                                   Nelson, IJ
                                                                               A099 936 378
                           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 27th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                PETER W. HALL,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _______________________________________
12
13       GAN GAO,
14                       Petitioners,
15
16                       v.                                     11-2631-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONERS:               Eric Y. Zheng, New York, New York.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney
26                                      General; Carl H. McIntyre, Assistant
27                                      Director; Justin R. Markel, Trial
28                                      Attorney, Office of Immigration
29                                      Litigation, United States Department
30                                      of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DISMISSED in part and DENIED in part.

 5       Gan Gao, a native and citizen of the People’s Republic

 6   of China, seeks review of a May 31, 2011, decision of the

 7   BIA affirming the March 4, 2009, decision of Immigration

 8   Judge (“IJ”) Barbara A. Nelson denying his application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).    In re Gan Gao, No. A099

11   936 378 (B.I.A. May 31, 2011), aff’g No. A099 936 378

12   (Immig. Ct. N.Y. City Mar. 4, 2009).   We assume the parties’

13   familiarity with the underlying facts and procedural history

14   of this case.

15       As an initial matter, we lack jurisdiction to review

16   the IJ’s denial of asylum based on her determination that

17   Gao had firmly resettled in Canada prior to his arrival in

18   the United States, as Gao failed to challenge the IJ’s

19   determination before the BIA in the first instance. See

20   8 U.S.C. § 1252(d)(1); see also Karaj v. Gonzales, 462 F.3d

21   113, 119 (2d Cir. 2006).   Accordingly, we dismiss the

22   petition for review to that extent.

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                                   2
 1   Withholding of Removal & CAT

 2       Under the circumstances of this case, we have reviewed

 3   both the IJ’s and the BIA’s opinions “for the sake of

 4   completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

 5   2008) (per curiam). The applicable standards of review are

 6   well-established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

 7   v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

 8       A.   Land Dispute Claim

 9       We find that the agency reasonably determined that Gao

10   failed to demonstrate that the harm he suffered during the

11   course of a land dispute with local government officials

12   constituted persecution on account of his actual or imputed

13   political opinion. 8 U.S.C. § 1158(b)(1)(B)(i). For

14   applications for withholding of removal governed by the REAL

15   ID Act, “the applicant must establish that race, religion,

16   nationality, membership in a particular social group, or

17   political opinion was or will be at least one central reason

18   for persecuting the applicant.”     8 U.S.C.

19   § 1158(b)(1)(B)(i).

20       Here, Gao testified that his repeated confrontations

21   with local land officials were motivated solely by his

22   desire to resolve a private land dispute, in which he had a


                                     3
 1   personal financial interest at stake, and, as the BIA noted,

 2   not by any desire to vindicate the rights of other

 3   leaseholders or express his opposition to government

 4   corruption or wrongdoing.   Although Gao argues that what

 5   began as a private land dispute graduated to political

 6   expression when he filed a lawsuit against the local land

 7   officials, his argument is not supported by the record, as

 8   Gao testified only that he filed the lawsuit to challenge

 9   the violation of his personal land rights.   Moreover, Gao

10   did not present any evidence indicating that the local

11   government officials and law enforcement personnel

12   mistreated him because they perceived him as having an anti-

13   government political opinion, instead testifying that he was

14   beaten on two occasions after being accused of disturbing

15   the peace. See e.g., Chun Gao v. Gonzales, 424 F.3d 122, 129

16   (2d Cir. 2005) (holding that “an imputed political opinion,

17   whether correctly or incorrectly attributed, can constitute

18   a ground of political persecution within the meaning of the

19   [INA]”).   Accordingly, the agency did not err in finding

20   that Gao failed to establish past persecution on the basis

21   of an actual or imputed political opinion.   See Yueqing

22   Zhang, 426 F.3d at 545 (internal citation omitted).

23

                                   4
 1       The BIA also reasonably found that Gao failed to

 2   establish a likelihood of future persecution in China, as he

 3   did not present any evidence indicating that local land

 4   officials continued to threaten him after his departure from

 5   China in 2004.    See    8 C.F.R. § 1208.16(b)(2).   Moreover,

 6   the BIA reasonably determined that Gao’s fear of future

 7   persecution was undermined by the fact that his parents

 8   continued to live unharmed on the same property that was the

 9   subject of the land dispute.      See   8 C.F.R. § 1208.16(b)(2);

10   see also Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d

11   Cir. 1999) (finding that an applicant’s fear of persecution

12   was undermined when his family remained in the native

13   country unharmed).      Finally, the BIA reasonably concluded

14   that Gao failed to establish a likelihood of persecution in

15   China based on a pattern or practice of persecution of

16   Chinese citizens in land use matters, as Gao did not submit

17   any evidence showing that the threat of harm to these

18   individuals is systemic, pervasive or organized.       See

19   8 C.F.R. § 1208.16(b)(2); Mufied v. Mukasey, 508 F.3d 88, 92

20   (2d Cir. 2007).

21       B.   Family Planning Claim

22       We further find that the agency reasonably determined

23   that Gao failed to meet his burden in demonstrating past
                                      5
 1   persecution or a likelihood of persecution based on his wife

 2   having been forced to undergo an IUD insertion procedure.

 3   As the agency properly determined, Gao’s claim based on his

 4   wife’s forced IUD insertion is foreclosed by our decision in

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

 6   Cir. 2007), which squarely rejected the notion that an alien

 7   is per se eligible for relief based on harm suffered by

 8   their spouse.   See 494 F.3d at 309.   Additionally, the BIA

 9   reasonably determined that Gao failed to establish past

10   persecution or a likelihood of future persecution on account

11   of his “other resistance” to China’s family planning policy,

12   as he did not testify that he was ever arrested, detained,

13   sterilized, or otherwise harmed, and did not present any

14   evidence indicating that family planning officials continued

15   to pursue or threaten him after his departure from China in

16   2004.   See Shi Liang Lin, 494 F.3d at 313; See also 8 C.F.R.

17   § 1208.16(b)(2).

18       Because the agency reasonably concluded that Gao failed

19   to establish past persecution or a likelihood of persecution

20   on account of a protected ground in relation to his land

21   dispute claim, and because substantial evidence supports the

22   agency’s determination that Gao failed to establish past

23   persecution or a likelihood of persecution on account of his
                                   6
 1   other resistance to China’s family planning policy, it did

 2   not err in denying withholding of removal and CAT relief, as

 3   both claims shared the same factual predicate.    See Xue Hong

 4   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.

 5   2006).

 6       For the foregoing reasons, the petition for review is

 7   DISMISSED in part and DENIED in part.    As we have completed

 8   our review, any stays of removal that the Court previously

 9   granted in this petition are VACATED, and any pending motion

10   for a stays of removal in this petition are DISMISSED as

11   moot.    Any pending request for oral argument in this

12   petition is DENIED in accordance with Federal Rule of

13   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

14   34.1(b).

15                                FOR THE COURT:
16                                Catherine O’Hagan Wolfe, Clerk
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