         09-4970-ag
         Yang v. US DOJ
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A093 389 814
                           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 23 rd day of September, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                      Chief Judge,
 9                JON O. NEWMAN,
10                DENNY CHIN,
11                     Circuit Judges.
12       _______________________________________
13
14       DING DI YANG,
15                Petitioner,
16
17                        v.                                    09-4970-ag
18                                                              NAC
19       U.S. DEPARTMENT OF JUSTICE,
20       ATTORNEY GENERAL, & IMMIGRATION AND
21       NATURALIZATION SERVICE
22                Respondents.
23       _______________________________________
24
25       FOR PETITIONER:               Cora J. Chang, New York, New York.
26
27       FOR RESPONDENTS:              Tony West, Assistant Attorney
28                                     General; Jennifer Levings, Senior
29                                     Litigation Counsel; Carmel A.
1                           Morgan, Trial Attorney, 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

9    is DENIED.

10       Ding Di Yang, a native and citizen of the People’s

11   Republic of China, seeks review of a November 9, 2009, order

12   of the BIA affirming the March 11, 2008, decision of

13   Immigration Judge (“IJ”) Robert D. Weisel, which denied his

14   application for asylum, withholding of removal, and relief

15   under the Convention Against Torture (“CAT”).   In re Dong Di

16   Yang, No. A093 389 814 (B.I.A. Nov. 9, 2009), aff’g No. A093

17   389 814 (Immig. Ct. N.Y. City Mar. 11, 2008).   We assume the

18   parties’ familiarity with the underlying facts and

19   procedural history in this case.

20       Under the circumstances of this case, we review the

21   IJ’s decision as supplemented by the BIA’s decision.   See

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

23   applicable standards of review are well-established.

24   See 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t

25   of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).


                                  2
1        The refugee definition set forth at 8 U.S.C.

2    § 1101(a)(42) does not provide automatic refugee status to

3    the spouse of someone who was forced to undergo an abortion

4    or sterilization.   Shi Liang Lin v. U.S. Dep’t of Justice,

5    494 F.3d 296, 309-12 (2d Cir. 2007) .   Rather, for a spouse

6    to be eligible for relief, he must demonstrate:

7    (1) “resistance” to a coercive family planning policy, which

8    can cover “a wide range of circumstances, including

9    expressions of general opposition, attempts to interfere

10   with enforcement of government policy in particular cases,

11   and other overt forms of resistance to the requirements of

12   the family planning law”; and (2) that the applicant has

13   either “suffered harm amounting to persecution on account of

14   that resistance" or has a well-founded fear of such harm.

15   Id. at 313 (quoting Matter of S-L-L, 24 I. & N. Dec. 1, 10

16   (BIA 2006)).

17       Contrary to Yang’s assertion, the agency reasonably

18   determined that his anger over his wife’s forced abortion

19   and the animosity he felt towards family planning officials

20   constituted neither persecution to Yang personally nor

21   “other resistance” to China’s population control policy.

22   See id., 494 F.3d at 309-12 (recognizing that “an individual



                                   3
1    whose spouse undergoes, or is threatened with, a forced

2    abortion or involuntary sterilization may suffer a profound

3    emotional loss as a partner and a potential parent,” but

4    nonetheless holding that such individual is not per se

5    eligible for asylum).     Moreover, even assuming that Yang’s

6    attempts to add the child he found abandoned to his

7    household registry constituted “other resistance” to China’s

8    family planning policy, the agency reasonably determined

9    that, because Yang was in no way harmed or mistreated for

10   trying to register the child, he failed to demonstrate that

11   he suffered any persecution as a result.     See Pavlova v.

12   INS, 441 F.3d 82, 85 (2d Cir. 2006); Ivanishvili v. U.S.

13   Dep’t, 433 F.3d 332, 341-42 (2d Cir. 2006).

14       Moreover, the record does not support Yang’s contention

15   that he has a well-founded fear of sterilization in China

16   because, as the agency found, he remained in China without

17   incident for three years following his wife’s forced

18   abortion.     Thus, the agency reasonably determined that

19   Yang’s fear of forced sterilization was not objectively

20   reasonable.     See Ramsameachire v. Ashcroft, 357 F.3d 169,

21   178 (2d Cir. 2004).




                                     4
1        Because Yang failed to challenge sufficiently the

2    agency’s denial of his applications for withholding of

3    removal and CAT relief before this Court, we deem any such

4    arguments waived.   See Yueqing Zhang v. Gonzales, 426 F.3d

5    540, 541 n.1, 545 n.7 (2d Cir. 2005).

6        For the foregoing reasons, the petition for review is

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

8    removal that the Court previously granted in this petition

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

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

11   oral argument in this petition is DENIED in accordance with

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

13   Circuit Local Rule 34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk




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