         11-1762-ag
         Ni v. Holder
                                                                                         BIA
                                                                                    Mateo, IJ
                                                                                 A094 923 026
                          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 16th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                PETER W. HALL,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       ZAN NI,
14                      Petitioner,
15
16                      v.                                         11-1762-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Michael Brown, New York,
24                                      New York.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General; Anthony C. Payne, Senior
28                                      Litigation Counsel; Liza S. Murcia,
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 Zan Ni, a native and citizen of the People’s

 6   Republic of China, seeks review of an April 11, 2011, order

 7   of the BIA, affirming the February 26, 2009, decision of

 8   Immigration Judge (“IJ”) Rene D. Mateo, which denied his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).     In re Zan Ni,

11   No. A094 923 026 (B.I.A. Apr. 11, 2011), aff’g No. A094 923

12   026 (Immig. Ct. N.Y. City Feb. 26, 2009).     We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and BIA’s opinions “for the sake of

17   completeness.”     See Zaman v. Mukasey, 514 F.3d 233, 237 (2d

18   Cir. 2008) (quoting Wangchuck v. DHS, 448 F.3d 524, 528 (2d

19   Cir. 2006)).     The applicable standards of review are well-

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

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

22



                                     2
 1         While the definition of “refugee” does not extend

 2   automatically to partners of individuals who have been

 3   forcibly sterilized or forced to have an abortion, see Shi

 4   Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 313 (2d

 5   Cir. 2007), an alien may qualify for refugee status if he

 6   can prove past persecution or a well-founded fear of

 7   persecution, for “‘resistance’ that is directly related to

 8   [his] own opposition to a coercive family planning policy.”

 9   Id.   This requires (1) a showing of “‘resistance’ to a

10   coercive family planning policy”; and (2) that the applicant

11   has suffered or reasonably fears “suffer[ing] harm amounting

12   to persecution on account of that resistance.”   Id. at 313.

13         Ni argues that he demonstrated both past persecution

14   and a well-founded fear of future persecution.   Ni’s

15   argument, that the agency erroneously found that his

16   altercation with family planning officials did not

17   constitute persecution, is unavailing as he suffered no

18   serious injury, required no medical attention, suffered no

19   lasting effects, and the harm did not occur while he was

20   detained.   Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d

21   Cir. 2011); Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir.

22   2006).


                                   3
 1       Ni also challenges the agency’s determination that he

 2   failed to demonstrate an objectively reasonable well-founded

 3   fear of future persecution.   The agency reasonably concluded

 4   that Ni’s fear, that family planning officials would require

 5   him to report for sterilization, was undermined by the fact

 6   that his wife, who also was required to report for

 7   sterilization, remained unharmed.   The agency was not

 8   required to credit Ni’s explanations that his wife remained

 9   unsterilized in China because he is living in the United

10   States and they can only procreate when they are living

11   together, or that she was unharmed because she was in

12   hiding, particularly as he testified that she worked as a

13   street vendor at night.   See Melgar de Torres v. Reno, 191

14   F.3d 307, 313 (2d Cir. 1999) (finding that where asylum

15   applicant’s mother and daughters continued to live in

16   petitioner’s native country, claim of well-founded fear

17   diminished); see also Siewe v. Gonzales, 480 F.3d 160, 167

18   (2d Cir. 2007) (“Where there are two permissible views of

19   the evidence, the fact-finder’s choice between them cannot

20   be clearly erroneous.”) (quoting Anderson v. Bessemer City,

21   470 U.S. 564, 574 (1985)).

22



                                   4
 1       Ni’s argument that the BIA improperly dismissed a

 2   village committee notice ordering him or his wife to report

 3   for sterilization is without merit as the IJ implicitly

 4   considered the notice, but determined that Ni’s fear was not

 5   objectively reasonable given that the notice had not been

 6   enforced against Ni’s wife.   Moreover, the BIA did not

 7   “dismiss” the notice, but affirmed the IJ’s decision, and,

 8   in addition, pointed out that the notice should be given

 9   diminished weight because it was unauthenticated, unsigned,

10   and did not identify the author.   See Xiao Ji Chen v. U.S.

11   Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding

12   that the weight afforded to the applicant’s evidence in

13   immigration proceedings lies largely within the discretion

14   of the agency).

15       We decline to reach Ni’s argument that the BIA engaged

16   in improper fact-finding because, even assuming error,

17   remand would be futile given that the BIA affirmed the IJ’s

18   determination that Ni had not demonstrated an objectively

19   reasonable fear and that determination took the notice into

20   account.   As Ni was unable to meet his burden for asylum, he

21   necessarily fails to meet the higher burden required to

22   succeed on a claim for withholding of removal.   See Gomez v.

23   I.N.S., 947 F.2d 660, 665 (2d Cir. 1991).
                                   5
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 DENIED 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                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12




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