         10-4949-ag
         Dang v. Holder
                                                                                       BIA
                                                                                 Nelson, I.J.
                                                                               A073 162 411
                           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 21st day of February, two thousand twelve.
 5
 6       PRESENT:
 7                RICHARD C. WESLEY,
 8                RAYMOND J. LOHIER, JR.,
 9                SUSAN L. CARNEY,
10                    Circuit Judges.
11       ______________________________________
12
13       ZHIAN DANG, AKA ZHIAN WANG,
14                Petitioner,
15                                                              10-4949-ag
16                        v.                                    NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Zhian Dang, pro se, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Blair T. O’Connor,
28                                     Assistant Director, Joseph D. Hardy,
29                                     Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     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 Zhian Dang, a native and citizen of China,

 6   seeks review of a November 17, 2010, decision of the BIA

 7   affirming the November 4, 2008, decision of Immigration

 8   Judge (“IJ”) Barbara A. Nelson, finding that Dang was

 9   incredible and denying his application for asylum and

10   withholding of removal.    In re Zhian Dang, No. A073 162 411

11   (B.I.A. Nov. 17, 2010), aff’g, No. A073 162 411 (Immig. Ct.

12   N.Y. City Nov. 4, 2008). We assume the parties’ familiarity

13   with the underlying facts and procedural history.

14       Under the circumstances of this case, we have reviewed

15   the IJ’s decision as supplemented by the BIA. See Yan Chen

16   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

17   applicable standards of review are well-established. See

18   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

19   510, 513 (2d Cir. 2009).

20       In finding that Dang was incredible, the agency

21   reasonably relied on his failure to include his wife’s

22   sterilization in his asylum application.   Although Dang


                                    2
 1   contends that the sterilization was omitted from the

 2   application because it was prepared by a “travel agency,” he

 3   also failed to mention the sterilization in his interview

 4   with an asylum officer.

 5       Moreover, as his application was based on persecution

 6   under China's family planning policies – namely threats of

 7   intra-uterine device implantation and sterilization – the

 8   omission of his wife's sterilization was substantial and

 9   bore a legitimate nexus to his claim.   See Cheng Tong Wang

10   v. Gonzales, 449 F.3d 451, 453-54 (2d Cir. 2006) (finding

11   agency properly based adverse credibility determination on

12   applicant's failure to mention his wife’s forced

13   sterilization in his asylum application, given that his

14   “claim for asylum was based on his failure to comply with

15   China's family-planning program”).   While Dang has presented

16   evidence that his wife was sterilized, this evidence does

17   not indicate when his wife was sterilized, or whether it was

18   an involuntary procedure, and does not compel the conclusion

19   that the credibility finding must be reversed.     See Ahmed v.

20   Ashcroft, 286 F.3d 611, 612 (2d Cir. 2002).

21       Furthermore, even if Dang’s testimony were considered

22   to be credible, the agency reasonably found, in the


                                  3
 1   alternative, that he did not meet his burden of

 2   demonstrating past persecution or a well-founded fear of

 3   future persecution.   The sterilization of Dang’s wife does

 4   not constitute per se persecution with respect to Dang.      See

 5   Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 308-09

 6   (2d Cir. 2007).   He was therefore required to demonstrate

 7   “other resistance” to the family planning policies, and

 8   persecution as a result of this resistance, or a

 9   well-founded fear that he will be subject to persecution due

10   to his resistance.    Id. at 309-10, 313 (quoting 8 U.S.C.

11   § 1101(a)(42)).

12       Even assuming that Dang’s efforts to hide from family

13   planning authorities constitutes “other resistance,” the

14   agency reasonably found that he did not suffer harm rising

15   to the level of persecution on account of this resistance.

16   Dang testified that he was required to pay a fine for

17   violating the family planning policies, but did not allege

18   that he was arrested, physically harmed or otherwise

19   mistreated by the authorities.     See Ivanishvili v. U.S.

20   Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006).     In his

21   brief, Dang does not argue that the fine constituted

22   persecution, and he has therefore waived this argument.


                                    4
 1       Further, Dang has failed to demonstrate a well-founded

 2   fear of future persecution, as he has identified no basis

 3   for his belief that he will be persecuted if he returns to

 4   China.    See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d

 5   Cir. 2005).   Accordingly, the agency did not err in finding

 6   that Dang failed to meet his burden in establishing past

 7   persecution or a well-founded fear of persecution, or in

 8   rejecting his claim for withholding of removal based on the

 9   same factual predicate.    See Shi Liang Lin, 494 F.3d at 313;

10   Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006).

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

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

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

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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