     15-2759
     Wang v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A078 383 276

                          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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   5th day of December, two thousand sixteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RICHARD C. WESLEY,
10            PETER W. HALL,
11                 Circuit Judges.
12   _____________________________________
13
14   YUN CHENG WANG,
15            Petitioner,
16
17                   v.                                              15-2759
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Yee Ling Poon; Deborah Niedermeyer,
25                                       Law Office of Yee Ling Poon, LLC, New
26                                       York, New York.
27
28   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
29                                       Assistant Attorney General; Alison
30                                       M. Igoe, Senior Counsel for National
31                                       Security; Daniel I. Smulow, Counsel
1                                 for National Security, Office of
2                                 Immigration Litigation, United
3                                 States Department of Justice,
4                                 Washington, D.C.
5
6        UPON DUE CONSIDERATION of this petition for review of a

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

8    ORDERED, ADJUDGED, AND DECREED that the petition for review is

9    DENIED.

10       Petitioner Yun Cheng Wang, a native and citizen of the

11   People’s Republic of China, seeks review of an August 6, 2015,

12   decision of the BIA affirming a September 27, 2013, decision

13   of an Immigration Judge (“IJ”) denying Wang’s application for

14   asylum, withholding of removal, and relief under the Convention

15   Against Torture (“CAT”).     In re Yun Cheng Wang, No. A078 383

16   276 (B.I.A. Aug. 6, 2015), aff’g No. A078 383 276 (Immig. Ct.

17   N.Y. City Sept. 27, 2013).    We assume the parties’ familiarity

18   with the underlying facts and procedural history in this case.

19       We have reviewed both the IJ’s and the BIA’s opinions “for

20   the sake of completeness.”    Wangchuck v. DHS, 448 F.3d 524, 528

21   (2d Cir. 2006).   The applicable standards of review are well

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

23   Holder, 562 F.3d 510, 513 (2d Cir. 2009).   Because Wang’s brief

                                     2
1    does not challenge the agency’s denial of CAT deferral or

2    reopening, we review only the agency’s conclusion that Wang’s

3    acts as a driver for Chinese family planning officials bar him

4    from asylum and withholding of removal.                 See Yueqing Zhang v.

5    Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir. 2005).                    We conclude

6    that the persecutor bar applies and is dispositive of Wang’s

7    petition.

8        As an initial matter, the Government is correct that Wang

9    failed to exhaust two arguments in his brief.               Wang argues that

10   (1) he did not knowingly assist in persecution and the

11   translator’s    use     of   the    word       arrest    was   an    erroneous

12   translation; and (2) the IJ never determined whether an “arrest”

13   under   Chinese   law    is     sufficiently        coercive    to     trigger

14   application of the persecutor bar.                 Because the Government

15   raises exhaustion and because Wang’s brief to the BIA did not

16   raise these arguments, these issues are not properly before us.

17   Foster v. U.S. INS, 376 F.3d 75, 78 (2d Cir. 2004) (“To preserve

18   a claim, we require [p]etitioner to raise issues to the BIA in

19   order   to   preserve    them      for       judicial   review.”     (internal

20   quotation marks)); see also Lin Zhong v. U.S. Dep’t of Justice,

21   480 F.3d 104, 107, 121-23 (2d Cir. 2006).
                                              3
1        Moreover, even considering all of the arguments, we discern

2    no error in the agency’s application of the persecutor bar.    An

3    alien is barred from asylum and withholding of removal if he

4    “ordered, incited, assisted, or otherwise participated in the

5    persecution of any person on account of” a protected ground.

6    8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i);

7    see Zhang Jian Xie v. INS, 434 F.3d 136, 140 (2d Cir. 2006).

8    If the evidence indicates that an asylum applicant engaged in

9    any of these activities, the applicant has “the burden of

10   proving by a preponderance of the evidence that he . . . did

11   not so act.”   8 C.F.R. § 1208.13(c)(2)(ii).    “Four relevant

12   factors determine whether the persecutor bar applies to a

13   particular alien: (1) whether the alien was ‘involved in’ acts

14   of persecution by ordering, inciting, or actively carrying out

15   the acts; (2) whether there is a nexus between the persecution”

16   and a protected ground; “(3) whether the alien’s actions, if

17   not outright ‘involvement’ under the first factor, amount to

18   assistance or participation in persecution;” and (4) whether

19   the alien was culpable, i.e., “whether [he] had sufficient

20   knowledge that [his] actions might assist in persecution.”    Yan


                                    4
1    Yan Lin v. Holder, 584 F.3d 75, 79-80 (2d Cir. 2009); see also

2    Balachova v. Mukasey, 547 F.3d 374, 384-85 (2d Cir. 2008).

3        Here, the IJ reasonably concluded that Wang’s case was

4    controlled by our precedent.   In Zhang Jian Xie, we concluded

5    that the agency properly applied the persecutor bar to an asylum

6    applicant who, while working as a driver for family planning

7    authorities, transported women to hospitals so family planning

8    officials could perform forced abortions.   434 F.3d at 138.   We

9    concluded that the Xie was subject to the persecutor bar

10   regardless of his redemptive act in freeing the final woman he

11   was transporting.   Id. at 143–44.

12       Wang’s case is not meaningfully distinguishable.     As the

13   IJ noted, Wang consistently testified that he drove family

14   planning authorities to arrest women, which rebuts his claim

15   that he did not knowingly assist in persecution.   His claim is

16   further rebutted by his testimony that he knew what he was doing

17   was not right and that he warned a friend when the authorities

18   were coming for her.     Wang argues that the only woman he

19   transported to the hospital actually went along voluntarily,

20   but Wang’s testimony on this point was equivocal: he stated that

21   she did not resist and may have consented, but also noted that
                                    5
1    she did not look happy during the drive and that he did not know

2    what happened when the family planning staff was in the woman’s

3    house.   Because Wang had the burden to rebut application of the

4    bar and his testimony supports a conclusion that he knowingly

5    transported a woman for an involuntary abortion and drove

6    officials in other attempts to detain women for abortions, we

7    see no basis to overturn the agency’s ruling.         8 C.F.R.

8    § 1208.13(c)(2)(ii).

9        Finally, in Zhang Jian Xie this Court held that, despite

10   the petitioner’s redemptive act of releasing a captive woman

11   who he was transporting to the hospital for a forced abortion,

12   the BIA did not err in concluding that his other acts of

13   transporting women for forced abortions subjected him to the

14   persecutor bar.   434 F.3d at 143–44.   Wang argues that Zhang

15   Jian Xie is distinguishable because Wang only assisted in one

16   abortion, but he cites no authority for the proposition that

17   application of the persecutor bar turns on the number of times

18   an alien assists in persecution.        In any event, we have

19   suggested that “the BIA should apply the same definition to

20   persecution in the persecutor-bar context as it does in defining

21   who is a refugee,” Balachova, 547 F.3d at 384, and it is
                                    6
1    well-settled that an alien has been persecuted if they have been

2    subjected to a single forced abortion, Yan Yan Lin, 584 F.3d

3    at 80 (“It is settled law that forced abortion is persecution

4    on account of political opinion.”).        See also 8 U.S.C.

5    1101(a)(42) (providing that asylum is not available to anyone

6    who “ordered, incited, assisted, or otherwise participated in

7    the persecution of any person”).   As in Zhang Jian Xie, we have

8    no basis to conclude that the BIA erred in applying the

9    persecutor bar despite Wang’s redemptive act.

10       For the foregoing reasons, the petition for review is

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

12   that the Court previously granted in this petition is VACATED,

13   and any pending motion for a stay of removal in this petition

14   is DISMISSED as moot.    Any pending request for oral argument

15   in this petition is DENIED in accordance with Federal Rule of

16   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

17   34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O=Hagan Wolfe, Clerk




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