         09-2246-ag
         Ou v. Holder
                                                                                       BIA
                                                                                 Laforest, IJ
                                                                               A099 670 040
                          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 13 th day of January, two thousand ten.
 5
 6       PRESENT:
 7                      DENNIS JACOBS,
 8                           Chief Judge,
 9                      ROGER J. MINER,
10                      PIERRE N. LEVAL,
11                           Circuit Judges.
12
13       _______________________________________
14
15       JIA XIN OU,
16                Petitioner,
17
18                       v.                                     09-2246-ag
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL, BOARD OF IMMIGRATION APPEALS
22                Respondents.
23       _______________________________________
 1   FOR PETITIONER:        Henry Zhang, New York, New York.
 2
 3   FOR RESPONDENTS:       Tony West, Assistant Attorney
 4                          General, Civil Division; Janice
 5                          Redfern, Senior Litigation Counsel;
 6                          Scott Rempell, Trial Attorney,
 7                          Office of Immigration Litigation,
 8                          United States Department of Justice,
 9                          Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

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

14   is DENIED.

15       Jia Xin Ou, a native and citizen of the People’s

16   Republic of China, seeks review of an April 30, 2009 order

17   of the BIA affirming the October 26, 2007 decision of

18   Immigration Judge (“IJ”) Brigitte Laforest, which denied his

19   application for asylum, withholding of removal, and relief

20   under the Convention Against Torture (“CAT”).   In re Jia Xin

21   Ou, No. A099 670 040 (B.I.A. Apr. 30, 2009), aff’g No. A099

22   670 040 (Immig. Ct. N.Y. City Oct. 26, 2007).   We assume the

23   parties’ familiarity with the underlying facts and

24   procedural history of this case.

25       We review the IJ’s decision as supplemented by the BIA.

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

27   The applicable standards of review are well-settled.    See



                                  2
1    8 U.S.C. § 1252(b)(4)(B); Manzur v. U.S. Dep't of Homeland

2    Sec., 494 F.3d 281, 289 (2d Cir. 2007); see also Salimatou

3    Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

4        Contrary to Ou’s argument, the IJ properly based her

5    denial of his applications for relief on Shi Liang Lin v.

6    U.S. Dep’t of Justice, 494 F.3d 296, 309-12 (2d Cir. 2007)

7    (en banc), the controlling authority at the time she

8    rendered her oral decision, rather than based on the law as

9    it stood on the day of Ou’s April 2007 merits hearing.     The

10   IJ could not have made her decision prior to DHS’s

11   completion of the requisite background checks.     See 8 C.F.R.

12   § 1003.47(g) (requiring all identity, law enforcement, and

13   security investigations to be completed prior to an IJ

14   granting an application for immigration relief).     Once these

15   background checks were complete, the IJ was bound to apply

16   the law as it stood on the day of her decision.     See Harper

17   v. Virginia Dep’t of Taxation, 509 U.S. 86, 97-98 (1993)

18   (finding that courts are bound “to apply a rule of federal

19   law retroactively after the case announcing the rule has

20   already done so” in all cases still open on direct review).

21       Furthermore, we find no error in the agency’s denial of

22   relief.   Lin does not contest that he was not eligible for


                                   3
1    asylum based on his wife’s forced abortion.    See Shi Liang

2    Lin, 494 F.3d at 309-12.    Moreover, contrary to Ou’s

3    assertion, the factual record in the case was “adequately

4    developed” with respect to the issue of Ou’s “other

5    resistance” to the Chinese family planning policy.       See Shu

6    Wen Sun v. BIA, 510 F.3d 377, 381 n.5 (2d Cir. 2007) (per

7    curiam).

8        Moreover, the agency reasonably determined that even if

9    Ou did engage in resistance to China’s family planning

10   policy, he failed to demonstrate that he was persecuted on

11   account of that resistance.    See Shi Liang Lin, 494 F.3d at

12   313 (citing Matter of S-L-L, 24 I. & N. Dec. 1, 10 (B.I.A.

13   2005)).    Nothing in the record compels the conclusion that

14   Ou’s arrest, detention, and mistreatment upon his

15   repatriation to China were as a result of his resistance to

16   China’s population control policy as opposed to his

17   violation of the country’s immigration laws.    See Saleh v.

18   U.S. Dep't of Justice, 962 F.2d 234, 239 (2d Cir. 1992)

19   (“[P]unishment for violation of a generally applicable

20   criminal law is not persecution.”).

21       Because Ou’s claims for withholding of removal and CAT

22   relief were based on the same factual predicate as his


                                    4
1    asylum claim, and the BIA reasonably found that he was

2    unable to meet his burden for asylum, he was necessarily

3    unable to meet the higher standard required to succeed on

4    his claim for withholding of removal and CAT relief.     See

5    Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong

6    Yang v. U.S. Dep’t. of Justice, 426 F.3d 520, 523 (2d Cir.

7    2005).

8        For the foregoing reasons, the petition for review is

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

10   removal that the Court previously granted in this petition

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

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

13   oral argument in this petition is DENIED in accordance with

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

15   Circuit Local Rule 34(b).

16
17                               FOR THE COURT:
18                               Catherine O’Hagan Wolfe, Clerk
19
20                               By:___________________________




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