         09-4731-ag
         Weng v. Holder
                           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 22 nd day of December, two thousand               ten.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                JOSEPH M. McLAUGHLIN,
 9                JOSÉ A. CABRANES,
10                    Circuit Judges.
11       _______________________________________
12
13       YUMING WENG,
14                Petitioner,
15
16                        v.                                    09-4731-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Dehai Zhang, Flushing, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Greg D. Mack, Senior
27                                     Litigation Counsel; Shahrzad Baghai,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
32
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 is

4    DENIED.

5          Petitioner      Yuming     Weng,   a   native   and   citizen   of    the

6    People’s Republic of China, seeks review of a November 6, 2009

7    decision of the BIA affirming the February 8, 2008 decision of

8    Immigration      Judge    (“IJ”)    Alan     A.   Vomacka   denying      Weng’s

9    application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).                   In re Yuming

11   Weng, No. A094 824 790 (B.I.A. Nov. 6, 2009), aff’g No. A094

12   824 790 (Immig. Ct. N.Y. City Feb. 8, 2008).                    We assume the

13   parties’ familiarity with the underlying facts and procedural

14   history in this case.

15         Under the circumstances of this case, we review the                  IJ’s

16   decision as modified by the BIA decision, i.e., minus the

17   arguments for denying relief that the BIA explicitly declined

18   to consider.      See Xue Hong Yang v. U.S. Dep’t of Justice, 426

19   F.3d 520, 522 (2d Cir. 2005).            Here, because the BIA declined

20   to   review   the    IJ’s   adverse      credibility     determination,      we

21   assume, without determining, Weng’s credibility.                 See Yan Chen

22   v.   Gonzales,      417   F.3d   268,    271-72    (2d   Cir.   2005).      The


                                              2
1    applicable standards of review are well-established.                   See 8

2    U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546 F.3d

3    138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d

4    99, 110 (2d Cir. 2008).

5    I.            Weng’s “Other Resistance” Claim

6          Although Weng is not per se eligible for asylum based on

7    his wife’s forced abortion, Shi Liang Lin v. U.S. Dep’t of

8    Justice, 494 F.3d 296, 309-10 (2d Cir. 2007), he may qualify

9    for     relief    by    demonstrating      that   he:    (1)    engaged      in

10   “resistance” to a coercive population control program; and (2)

11   suffered past persecution or has a well-founded fear of future

12   persecution      on    account   of    such   resistance.      8    U.S.C.    §

13   1101(a)(42).

14         Contrary to the government’s assertion that Weng waives

15   any argument challenging the agency’s determination that he

16   established past persecution, he argues that the cumulative

17   effect of the harm he endured constituted past persecution.

18   However, the IJ considered Weng’s allegations of harm in the

19   aggregate and reasonably concluded that unfulfilled threats

20   and a shove by family planning officials did not rise to the

21   level    of   persecution.       See    Ivanishvili     v.   U.S.   Dep’t    of

22   Justice, 433 F.3d 332, 341 (2d Cir. 2006) (providing that in


                                            3
1    order to constitute persecution, the alleged past harm must be

2    sufficiently severe, rising above “mere harassment”); see also

3    Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir.

4    2006) (claims based on unfulfilled threats do not establish

5    persecution).      Moreover, despite Weng’s argument that the IJ

6    failed to consider the emotional harm he suffered as a result

7    of his wife’s forced abortion in evaluating the cumulative

8    impact of the harm he endured, Weng did not raise the issue of

9    emotional harm at any point before the IJ or the BIA.                   We

10   therefore find no error in the IJ’s determination that Weng

11   failed to establish that he suffered past persecution.                 See

12   Ivanishvili, 433 F.3d at 341.             Weng explicitly declines to

13   challenge the agency’s finding that he failed to establish a

14   well-founded fear of persecution based on his claim of other

15   resistance.

16   II.       Weng’s Claim Based on his Wife’s Future Pregnancy

17         In addition to his claim based on his “other resistance”

18   to the family planning policy, Weng argues that he established

19   a   well-founded    fear    of   future    persecution    based   on   the

20   possibility   that    his    wife   may    one   day   become   pregnant.

21   Because Weng’s claim depends on the possibility that his wife

22   will become pregnant again, the agency reasonably determined


                                         4
1    that any fear based on that possibility was not objectively

2    reasonable.     See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d

3    Cir. 2005) (per curiam)        (holding that absent “solid support

4    in the record” for the petitioner’s assertion that he would be

5    subjected to persecution his fear was “speculative at best”).

6    Insofar    as   Weng   challenges        the    agency’s     denial     of     his

7    applications for withholding of removal and CAT relief based

8    on this claim, the agency’s finding that he was not eligible

9    for asylum was dispositive.          See Paul v. Gonzales, 444 F.3d

10   148, 156 (2d Cir. 2006).

11   III.       Due Process Claim

12          To the extent Weng argues that the BIA violated his due

13   process rights by retroactively applying Matter of J-S-, 24 I.

14   & N. Dec. 520 (AG 2008), to find that he was not per se

15   eligible for relief based on his wife’s forced abortion, the

16   BIA    reasonably   applied    the   law       in   effect   at   the   time    it

17   entered its decision.         See 8 C.F.R. § 1003.1(d)(3)(ii); see

18   also N.L.R.B. v. Coca-Cola Bottling Co., 55 F.3d 74, 78 (2d

19   Cir. 1995) (“Appellate courts ordinarily apply the law in

20   effect at the time of the appellate decision.”).

21

22


                                          5
1        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

8    34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12




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