         03-40186-ag
         Pan v. Holder
                                                                                        BIA
                                                                                    Chew, IJ
                                                                                A073 597 034
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 19 th day of November, two thousand                nine.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                       Chief Judge,
 9                JON. O. NEWMAN,
10                PIERRE N. LEVAL,
11                       Circuit Judges.
12       _________________________________________
13
14       LIWEN PAN,
15                Petitioner,
16
17                          v.                                  03-40186-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL, *
21                Respondent.
22       _________________________________________


                        *
                Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr. is
         automatically substituted for former Attorney General John
         Ashcroft as respondent in this case.
         0 9 1 4 0 9 -3 0
 1   FOR PETITIONER:        Theodore N. Cox, New York, New York.
 2
 3   FOR RESPONDENT:        Jeffrey S. Bucholtz, Acting
 4                          Assistant Attorney General; Barry J.
 5                          Pettinato, Assistant Director;
 6                          Kristin A. Moresi, 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       Petitioner Liwen Pan, a native and citizen of the

16   People’s Republic of China, seeks review of a June 16, 2003

17   order of the BIA, reversing the October 16, 2001 decision of

18   Immigration Judge (“IJ”) George T. Chew, which granted her

19   application for withholding of deportation.     In re Liwen

20   Pan, No. A073 597 034 (B.I.A. June 16, 2003), rev’g No. A073

21   597 034 (Immig. Ct. N.Y. City Oct. 16, 2001).     We assume the

22   parties’ familiarity with the underlying facts and

23   procedural history in this case.

24       When the BIA does not adopt the decision of the IJ to

25   any extent, we review only the decision of the BIA.     See Yan

26   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005); Jin Yu

27   Lin v. U.S. Dep’t of Justice, 413 F.3d 188, 191 n.4 (2d Cir.


                                  2
1    2005).    We review the agency’s factual findings under the

2    substantial evidence standard.     8 U.S.C. § 1252(b)(4)(B);

3    see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).

4    We review de novo questions of law and the application of

5    law to undisputed fact.    Salimatou Bah v. Mukasey, 529 F.3d

6    99, 110 (2d Cir. 2008).

7        Pan argues that the BIA erred in concluding that she

8    failed to demonstrate her eligibility for withholding of

9    deportation based on the birth of her second child in the

10   United States.    However, this argument fails because we have

11   previously reviewed the BIA’s consideration of evidence

12   similar to that which Pan presented and have found no error

13   in its conclusion that such evidence is insufficient to

14   establish an objectively reasonable fear of persecution.

15   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.

16   2008); see also Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

17   2006) (recognizing that a withholding claim necessarily

18   fails if the applicant is unable to show the objective

19   likelihood of persecution needed to make out an asylum

20   claim).    Further, while Pan argues that the BIA ignored some

21   of her evidence, we “presume that [the agency] has taken

22   into account all of the evidence before [it], unless the


                                    3
1    record compellingly suggests otherwise,” and there is

2    nothing in the BIA’s decision compelling the conclusion that

3    it failed to take into account Pan’s evidence.     See Xiao Ji

4    Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d

5    Cir. 2006).     To the contrary, the BIA acknowledged that the

6    record contained unattributed reports of isolated incidents

7    of forced abortions and forced sterilizations in Pan’s home

8    province of Fujian, but reasonably found that such evidence

9    was insufficient to indicate a likelihood that Pan would be

10   singled out for such treatment, particularly in light of

11   evidence in the record demonstrating the lax and uneven

12   enforcement of the family planning policy in Fujian.     See

13   Jian Hui Shao, 546 F.3d at 153, 160, 165, 171 (finding that

14   the BIA reasonably concluded that “unattributed ‘reports’ of

15   forced sterilization that lack[] any specificity as to

16   number or circumstance” do not, by themselves, demonstrate a

17   reasonable possibility that a petitioner will face future

18   persecution).

19       Moreover, contrary to Pan’s argument, Mufied v.

20   Mukasey, 508 F.3d 88 (2d Cir. 2007) does not indicate that

21   remand is warranted in this case.     Unlike the situation in

22   Mufied, in which the petitioner raised a pattern and


                                     4
1    practice claim that the agency failed to consider, 508 F.3d

2    at 91, in this case, despite Pan’s failure to raise such a

3    claim, the BIA reasonably found that enforcement of the

4    family planning policy in Fujian was sporadic and that

5    forced abortions and sterilizations were not conducted

6    systematically.   See Jian Hui Shao, 546 F.3d at 150 n.6,

7    160-61, 165.

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




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