         10-2836-ag
         Gao v. Holder
                                                                                       BIA
                                                                                   Lamb, IJ
                                                                               A094 803 099
                          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 1st day of August, two thousand eleven.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                GERARD E. LYNCH,
 9                SUSAN L. CARNEY,
10                   Circuit Judges.
11       _______________________________________
12
13       ZHEN LIN GAO,
14                Petitioner,
15
16                       v.                                     10-2836-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               H. Raymond Fasano, Madeo & Fasano,
24                                     New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Richard M. Evans, Assistant
28                                     Director; Allen W. Hausman, Senior
29                                     Litigation Counsel, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1
 2       UPON DUE CONSIDERATION of this petition for review of a

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

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

 5   is DENIED.

 6       Zhen Lin Gao, a native and citizen of China, seeks

 7   review of a June 16, 2010, order of the BIA affirming the

 8   August 4, 2008, decision of Immigration Judge (“IJ”)

 9   Elizabeth A. Lamb, which denied his application for asylum,

10   withholding of removal, and relief under the Convention

11   Against Torture (“CAT”).     In re Zhen Lin Gao, No. A094 803

12   099 (B.I.A. June 16, 2010), aff’g No. A094 803 099 (Immig.

13   Ct. N.Y.C. Aug. 4, 2008).     We assume the parties’

14   familiarity with the underlying facts and procedural history

15   in this case.

16       Under the circumstances of this case, we have reviewed

17   the IJ’s decision as modified by the BIA decision.     See Xue

18   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

19   Cir. 2005).     The applicable standards of review are well-

20   established.     8 U.S.C. § 1252(b)(4)(B); see Yanqin Weng v.

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

22       Under 8 U.S.C. § 1101(a)(42), an individual who was not

23   personally subject to a forced abortion or sterilization may


                                     2
 1   still establish eligibility for asylum by showing that he

 2   engaged in “other resistance to a coercive population

 3   control program,” and that as a result of that resistance,

 4   he was persecuted.   Shi Liang Lin v. U.S. Dep’t of Justice,

 5   494 F.3d 296, 309-10 (2d Cir. 2007) (en banc); see also

 6   Matter of J-S-, 24 I. & N. Dec. 520, 536-38 (A.G. 2008)

 7   (adopting the holding in Shi Liang Lin).   The agency did not

 8   err in finding that Gao did not demonstrate that any harm he

 9   suffered was on account of his resistance to a coercive

10   population control program.   Gao stated that he was hurt

11   when, as a 14-year-old, he hung onto his mother’s leg when

12   she was being taken off to be sterilized. But he submitted

13   no evidence that when he clung to his mother’s leg he was

14   acting in resistance to a coercive population control

15   program. Rather, he stated in both his asylum application

16   and testimony that he grabbed his mother’s leg because he

17   was scared.   See Shi Liang Lin, 494 F.3d at 313.

18       Because the agency reasonably concluded that Gao did

19   not suffer past persecution, he is not entitled to a

20   presumption of future persecution.   See 8 C.F.R.

21   § 208.13(b)(1).   Gao makes no argument concerning a fear of

22   future persecution independent from his claim of past


                                   3
 1   persecution.   Consequently, the agency reasonably concluded

 2   that Gao did not meet his burden of establishing a well-

 3   founded fear of future persecution.    Because Gao did not

 4   demonstrate past persecution, or a well-founded fear of

 5   future persecution, the agency did not err in denying his

 6   applications for asylum and withholding of removal, which

 7   shared the same factual predicate.    See Xue Hong Yang, 426

 8   F.3d at 522-23.

 9       For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition

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

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

14   oral argument in this petition is DENIED in accordance with

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

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19
20




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