    10-1426-ag (L)
    Wang v. Holder
                                                                                  BIA
                                                                             Videla, IJ
                                                                          A099 025 437
                      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
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         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 9th day of January, two thousand twelve.

    PRESENT:
             ROGER J. MINER,
             ROBERT A. KATZMANN,
             BARRINGTON D. PARKER,
                  Circuit Judges.
    _______________________________________

    XIANG XIANG WANG,
             Petitioner,
                                                           10-1426-ag (L);
                     -v.-                                  10-4013-ag (Con)
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________
    FOR PETITIONER:               Richard Tarzia, Law Office of
                                  Richard Tarzia, Belle Mead, N.J.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Terri J. Scadron, Assistant
                                  Director; Micheline Hershey,
                                  Attorney, Office of Immigration
                                  Litigation, U.S. Department of
                                  Justice, Washington, D.C.
       UPON DUE CONSIDERATION of these petitions for review of

two Board of Immigration Appeals (“BIA”) decisions, it is

hereby ORDERED, ADJUDGED, AND DECREED that the petitions for

review are DENIED.

       Petitioner Xiang Xiang Wang, a native and citizen of

the People’s Republic of China, seeks review of both the

March 23, 2010, decision of the BIA affirming the June 3,

2008, decision of Immigration Judge (“IJ”) Gabriel C.

Videla, denying his application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”), In re Xiang Xiang Wang, No. A099 025 437 (B.I.A.

Mar. 23, 2010), aff’g No. A099 025 437 (Immigr. Ct. N.Y.

City June 3, 2008), and the September 7, 2010, decision of

the BIA denying his motion to reopen, In re Xiang Xiang

Wang, No. 099 025 437 (B.I.A. Sept. 7, 2010).1    We assume

the parties’ familiarity with the underlying facts and

procedural history.

I.     Merits - Docket Number 10-1426-ag (L)

       With respect to the agency’s denial of Wang’s initial

application, we review both the IJ’s and the BIA’s opinions



         1
           Wang does not challenge the agency’s denial of CAT
     relief.
                                2
“for the sake of completeness.”     Zaman v. Mukasey, 514 F.3d

233, 237 (2d Cir. 2008) (per curiam)(internal quotation

marks omitted).     The applicable standards of review are

well-established.

See 8 U.S.C. § 1252(b)(4)(B)(2006); Yanqin Weng v. Holder,

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

      In finding that Wang failed to establish his

eligibility for asylum, the agency properly found that

Wang’s claim based on his wife’s forced sterilization was

foreclosed by Shi Liang Lin v. U.S. Dep’t of Justice, 494

F.3d 296, 309 (2d Cir. 2007)(en banc).     Indeed, in Shi Liang

Lin, we squarely rejected the notion that an alien is per se

eligible for relief based on a spouse’s forced abortion.

See id. (holding that “an individual does not automatically

qualify for ‘refugee’ status on account of a coercive

procedure performed on someone else”).

    Moreover, as to Wang’s other allegation of past

persecution--his altercation with family planning officials-

-substantial evidence supports the agency’s determination

that Wang did not testify credibly because he omitted this

allegation from his asylum application.

See 8 U.S.C. § 1158(b)(1)(B)(iii)(2006) (stating that the


                                3
agency may rely on any inconsistency or omission in making

an adverse credibility determination as long as the

“totality of the circumstances” establishes that an asylum

applicant is not credible, without regard to whether those

inconsistencies go to the heart of the applicant’s claim);

Xiu Xia Lin v. Mukasey, 534 F.3d 162,163,167 (2d Cir.

2008)(per curiam); Matter of J-Y-C-, 24 I. & N. Dec. 260,

265 (B.I.A. 2007).

    Here, as the agency found, while Wang testified that he

tried to prevent family planning officials from entering his

home by “pulling them and drag[ging] them,” his written

application indicated only that he “disagreed” with his

wife’s forced sterilization, and that Chinese family

planning officials took him to a government office where he

was detained briefly and ordered to pay a fine, and made no

mention of any physical struggle or any other attempt to

resist efforts to sterilize his wife.   See Xiu Xia Lin, 534

F.3d at 166 (stating that for the purposes of analyzing a

credibility determination, “[a]n inconsistency and an

omission are ... functionally equivalent”).   A reasonable

fact finder would not be compelled to credit Wang’s

explanation for this omission.   See Majidi v. Gonzales, 430

F.3d 77, 80-81 (2d Cir. 2005).

                             4
    Moreover, as the agency reasonably found, even if Wang

testified credibly regarding his altercation with family

planning officials, and even if this altercation might be

characterized as “other resistance,” see Shi Liang Lin, 494

F.3d at 313, Wang nevertheless failed to establish that he

suffered harm rising to the level of persecution on account

of that resistance.   Indeed, because the only harm Wang

claimed to have suffered was a brief detention and damage to

some of his furniture, the agency reasonably found that the

harm Wang alleged did not rise to the level of persecution.

See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341

(2d Cir. 2006).   Given Wang’s failure to establish past

persecution or to provide any alternative basis for his fear

of future persecution, the agency did not err in finding

that he failed to demonstrate a well-founded fear of

persecution, particularly in light of the fact that,

following his wife’s forced sterilization, he remained in

China for two years without any further harm.   See

Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004);

Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).

    Furthermore, despite Wang’s assertion that he

established a well-founded fear of persecution based on his

illegal departure from China, the agency reasonably found

                              5
that the possibility that he will be prosecuted under a

generally applicable statute does not, by itself,

demonstrate that he has a well-founded fear of persecution

on account of a protected ground.   See Qun Yang v. McElroy,

277 F. 3d 158, 163 n.5 (2d Cir. 2002).

    Accordingly, the agency reasonably denied Wang’s

application for asylum.   Because he failed to meet his

burden of demonstrating eligibility for asylum, Wang

necessarily failed to meet the higher burden for withholding

of removal.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d

Cir. 2006).

II. Motion to Reopen - Docket Number 10-4013-ag (Con)

    We have reviewed the BIA’s denial of Wang’s motion to

reopen for abuse of discretion, see Kaur v. BIA, 413 F.3d

232, 233 (2d Cir. 2005) (per curiam), and conclude that

there has been no abuse of discretion, as the BIA provided

rational explanations for its decision.   See Ke Zhen Zhao v.

U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001).

Specifically, as the BIA noted, Wang failed to submit a new

asylum applicationwith his motion to reopen, as required by

the regulations.   See 8 C.F.R. § 1003.2(c)(1) (“A motion to

reopen proceedings for the purpose of submitting an



                              6
application for relief must be accompanied by the

appropriate application for relief.”).

    Additionally, the BIA reasonably determined that Wang

failed to demonstrate his prima facie eligibility for relief

based on his practice of Falun Gong in the United States.

See INS v. Abudu, 485 U.S. 94, 104 (1988) (recognizing that

a movant’s failure to establish a prima facie case for the

underlying substantive relief sought is a proper ground on

which the BIA may deny a motion to reopen).   As the BIA

found, Wang failed to demonstrate an objectively reasonable

fear that he would be persecuted due to his practice of

Falun Gong, as he did not present any evidence that Chinese

officials were aware or would become aware of his practice

of Falun Gong.   See Hongsheng Leng v. Mukasey, 528 F.3d 135,

143 (2d Cir. 2008)(per curiam).   Furthermore, contrary to

Wang’s argument that the BIA abused its discretion by

failing to consider adequately the evidence in the record,

the BIA explicitly referenced Wang’s evidence in its

decision, and its acknowledgment was sufficient.    See Jian

Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008)

(noting that the BIA does not need to parse expressly or

refute every piece of evidence submitted by the petitioner);

Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337

n.17 (2d Cir. 2006)(same).

                              7
    For the foregoing reasons, the petitions for review are

DENIED.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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