         09-2959-ag
         Chen v. Holder
                                                                                         BIA
                                                                            Gordon-Uruakpa, IJ
                                                                                A079 190 078
                           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 26 th day of January, two thousand eleven.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                GERARD E. LYNCH,
 9                DENNY CHIN,
10                   Circuit Judges.
11       _____________________________________
12
13       GOUYONG CHEN, a.k.a. GUO YONG CHEN,
14                Petitioner,
15
16                        v.                                    09-2959-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Oleh R. Tustaniwsky, Hualian Law
24                                     Offices, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General, Civil Division; Terri J.
28                                     Scadron, Assistant Director; Manuel
29                                     A. Palau, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
33
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 Gouyong Chen, a native and citizen of China,

6    seeks review of a June 16, 2009 order of the BIA: (1)

7    reversing the August 22, 2007 decision of Immigration Judge

8    (“IJ”) Vivienne E. Gordon-Uruakpa granting Chen’s

9    application for asylum; and (2) denying Chen’s application

10   for asylum, withholding of removal, and relief under the

11   Convention Against Torture (“CAT”).     In re Gouyong Chen, No.

12   A079 190 078 (B.I.A. June 16, 2009), rev’g No. A079 190 078

13   (Immig. Ct. N.Y. City Aug. 22, 2007).     We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history in this case.

16       Under the circumstances of this case, we     review only

17   the decision of the BIA.   See Yan Chen v. Gonzales, 417 F.3d

18   268, 271 (2d Cir. 2005).   The applicable standards of review

19   are well-established.   See 8 U.S.C. § 1252(b)(4)(B); Jian

20   Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008);

21   Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

22       Chen’s argument that he is eligible for asylum based


                                   2
1    solely on his wife’s involuntary abortion and sterilization

2    is foreclosed by our decision in Shi Liang Lin v. U.S. Dep’t

3    of Justice, 494 F.3d 296, 301 (2d Cir. 2007) (en banc).

4    Moreover, the BIA did not err in concluding that Chen’s

5    treatment for “other resistance” to his wife’s 1995

6    involuntary abortion did not rise to the level of

7    persecution.   See 8 U.S.C. § 1101(a)(42); see also

8    Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 340-41

9    (2d Cir. 2006) (collecting decisions discussing definition

10   of persecution).   Because this defect necessarily also

11   defeats Chen’s CAT claim based on the same factual

12   predicate, see Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

13   2006), the BIA did not err in failing separately to evaluate

14   that claim.

15       Finally, we identify no error in the BIA’s

16   determination that Chen failed to establish a well-founded

17   fear of persecution based on his illegal departure from

18   China.   See Qun Yang v. McElroy, 277 F.3d 158, 163 n.5 (2d

19   Cir. 2002) (finding that the possibility that an alien will

20   be prosecuted under a generally applicable statute does not,

21   by itself, demonstrate that the alien has a well-founded

22   fear of persecution on a protected ground).


                                   3
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 DISMISSED 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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