10-2291-ag
Guang Ti Ye v. Holder
                                                                                BIA
                                                                            Chew, IJ
                                                                       A099 927 013
                        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 12th day of October, two thousand eleven.
PRESENT:
         REENA RAGGI,
         PETER W. HALL,
         RAYMOND J. LOHIER, JR.,
              Circuit Judges.
_______________________________________

GUANG TI YE,
         Petitioner,

                  v.                                    10-2291-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                  Dehai Zhang, Flushing, New York.

FOR RESPONDENT:                  Tony West, Assistant Attorney
                                 General; Leslie McKay, Assistant
                                 Director; Melissa K. Lott, Attorney,
                                 Office of Immigration 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 Guang Ti Ye, a native and citizen of the

People’s Republic of China, seeks review of a May 26, 2010,

order of the BIA affirming the June 4, 2008, decision of

Immigration Judge (“IJ”) George T. Chew, denying his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).     In re Guang

Ti Ye, No. A099 927 013 (B.I.A. May 26, 2010), aff’g No.

A099 927 013 (Immig. Ct. N.Y. City June 4, 2008).      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 IJ’s and the BIA’s opinions “for the sake of

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

2008).   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).

I.   Violation of China’s Family Planning Policy

     As an initial matter, the BIA’s application of Shi

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

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2007) (en banc), and Matter of J-S-, 24 I. & N. Dec. 520

(A.G. 2008), was not error because the BIA was bound to

apply the law in effect at the time it entered its decision.

See NLRB v. Coca-Cola Bottling Co. of Buffalo, Inc., 55 F.3d

74, 78 (2d Cir. 1995) (“Appellate courts ordinarily apply

the law in effect at the time of the appellate decision.”).

Moreover, Ye had the opportunity to present his claim after

the issuance of Shi Liang Lin because his merits hearing did

not occur until the following year.   See Burger v. Gonzales,

498 F.3d 131, 134 (2d Cir. 2007) (holding that “[t]o

establish a violation of due process, an alien must show

that she was denied a full and fair opportunity to present

her claims” (internal quotation marks omitted)).

    The BIA reasonably concluded that Ye failed to

demonstrate past persecution or a well-founded fear of

future persecution.   Although Ye claimed that he suffered

past persecution, he did not allege that he was physically

harmed or mistreated by family planning officials.     See

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

(2d Cir. 2006) (holding that to constitute persecution, the

harm must be sufficiently severe, rising above “mere

harassment”).   Furthermore, as the BIA concluded, Ye was not

eligible for relief based on his wife’s forced abortion.

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See Shi Liang Lin, 494 F.3d at 307-08; see also Gui Yin Liu

v. INS, 508 F.3d 716, 723 (2d Cir. 2007).      Moreover, as the

agency noted, Ye failed to present any evidence

demonstrating that he suffered a substantial economic

disadvantage based on the destruction of his furniture.       See

Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 69-70

(2d Cir. 2002); see also In re T-Z-, 24 I. & N. Dec. 163,

171-75 (B.I.A. 2007).

    The agency also reasonably concluded that Ye failed to

establish a well-founded fear of future persecution because

his only support for that claim was his testimony that he

wanted to have more children.       See Jian Xing Huang v. INS,

421 F.3d 125, 129 (2d Cir. 2005) (holding that, absent

“solid support in the record” for the petitioner’s assertion

that he would be subjected to persecution, his fear was

“speculative at best”).

II. Membership in the Chinese Democracy Party (“CDP”)

    The IJ did not abuse his discretion in refusing to

grant a continuance for Ye to obtain additional evidence in

support of his CDP claim.   See Morgan v. Gonzales, 445 F.3d

549, 551 (2d Cir. 2006) (noting that IJs have “broad

discretion” and “are accorded wide latitude in calendar

management”).   The IJ accepted all evidence and testimony Ye

                                4
presented at his hearing and he was not required to afford

Ye additional time to develop his claim.   See id. at 552

(concluding that there was no abuse of discretion where

alien was not eligible for relief at the time of the hearing

and that alien had “no right to yet another delay . . . so

that he could attempt to become eligible for such relief”).

Moreover, the agency reasonably determined that Ye failed to

establish a well-founded fear of future persecution based on

his CDP membership, as he did not present any evidence that

Chinese officials were aware or likely to become aware of

his new membership in the CDP or his participation in one

CDP demonstration.   See Hongsheng Leng v. Mukasey, 528 F.3d

135, 143 (2d Cir. 2008) (“Put simply, to establish a well-

founded fear of persecution in the absence of any evidence

of past persecution, an alien must make some showing that

authorities in his country of nationality are either aware

of his activities or likely to become aware of his

activities.”).

    Because Ye was unable to establish his eligibility for

asylum, he was necessarily unable to establish his

eligibility for withholding of removal based on the same

factual predicate.   See Paul v. Gonzales, 444 F.3d 148, 156-

57 (2d Cir. 2006).   We do not address Ye’s CAT claim as it


                              5
is not addressed in his brief and was not raised before the

BIA.    See Gui Yin Liu v. INS, 508 F.3d at 723 n.6.

       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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