         09-2309-ag
         Xie v. U.S. Justice Dept.
                                                                                       BIA
                                                                                  Morace, IJ
                                                                               A073 173 217
                                     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 19 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                           ROBERT D. SACK,
 8                           REENA RAGGI,
 9                           RICHARD C. WESLEY,
10                                 Circuit Judges.
11
12       _______________________________________
13
14       BAO GUO XIE,
15                Petitioner,
16
17                             v.                               09-2309-ag
18                                                              NAC
19       U.S. JUSTICE DEPARTMENT,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:                      Lawrence Banigan, Hempstead, New
24                                            York.
25
26       FOR RESPONDENT:                      Tony West, Assistant Attorney
27                                            General; Richard Evans, Assistant
28                                            Director; Brooke M. Maurer, Trial
29                                            Attorney, Office of Immigration
30                                            Litigation, United States Department
31                                            of Justice, Washington, D.C.
1         UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5         Petitioner Bao Guo Xie, a native and citizen of the

6    People’s Republic of China, seeks review of a May 11, 2009

7    order of the BIA affirming the August 1, 2007 decision of

8    Immigration Judge (“IJ”) Philip P. Morace denying his

9    application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).    In re Bao Guo

11   Xie, No. A073 173 217(B.I.A. May 11, 2009), aff’g No. A073

12   173 217 (Immig. Ct. N.Y. City Aug. 1, 2007).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15        Under the circumstances of this case, this Court

16   reviews the decision of the IJ as supplemented by the BIA.

17   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

18   The applicable standards of review are well-established.

19   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

20   F.3d 510, 513 (2d Cir. 2009).

21   I.   Asylum and Withholding of Removal

22        A.   Past Persecution

23         Xie argues that he resisted China’s family planning

                                     2
1    policy by: (1) taking his wife to have an IUD illegally

2    removed; (2) illegally impregnating his wife with their

3    second child; and (3) leaving China following word from his

4    wife that he was required to report for sterilization.     We

5    need not reach the BIA’s determination that these acts did

6    not constitute “other resistance” pursuant to 8 U.S.C. §

7    1101(a)(42) sufficient to entitle Xie to asylum.     Shi Liang

8    Lin, 494 F.3d at 314.   Even assuming, as the IJ did, that

9    Xie demonstrated “minimal other resistance in this

10   particular case,” the agency reasonably found that the

11   unfulfilled threats of detention and sterilization, alleged

12   by petitioner, without more, did not constitute persecution.

13   See Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d

14   Cir. 2006) (noting that “[t]his Court, and others,

15   previously have rejected . . . claims [that] ‘unfulfilled’

16   threats” constitute persecution).

17       B.   Well-Founded Fear

18       The agency found that Xie provided no evidence that

19   Chinese officials would still enforce a sterilization order

20   against him following: (1) the successful sterilization of

21   his wife subsequent to his departure from China; and (2) his

22   divorce from his wife after leaving China.   Xie argues that

23   practices in the United States and Cuba “illustrate [that]

                                   3
1    the mere passage of time from the underlying violation does

2    not mean a government will drop its effort to apprehend and

3    punish the fugitive,” and challenges the agency’s reliance

4    on his divorce and his wife’s subsequent sterilization to

5    conclude he lacked a well-founded fear of persecution.

6    However, as Xie does not identify anything in the record to

7    demonstrate that the authorities have any continuing

8    interest in him, the agency’s finding that Xie’s fear is

9    speculative is supported by the record.     See Jian Xing Huang

10   v. United States, 421 F.3d 125, 129 (2d Cir. 2005).     Because

11   Xie was unable to meet his burden for asylum, he has

12   necessarily failed to meet the higher burden required for

13   withholding of removal.     See Paul v. Gonzales, 444 F.3d 148,

14   156 (2d Cir. 2006).

15       II.   CAT Relief

16       As the government argues, although Xie requests CAT

17   relief in his brief before this Court, he does not challenge

18   the basis of the IJ’s denial of CAT relief – that he did not

19   testify that he would be subject to torture – or otherwise

20   argue that any evidence established a likelihood of torture

21   upon return to China.     Accordingly, any challenge to the

22   agency’s denial of CAT relief should be deemed waived.        See

23   Yueqing Zhang, 426 F.3d at 541 n.1, 545 n.7.

                                     4
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

 8   Circuit Local Rule 34.1(b).
 9
10
11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14
15




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