          09-0106-ag
          Lie v. Holder
                                                                                                   BIA
                                                                                             Abrams, IJ
                                                                                           A099 610 151
                                   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 6 th day of January,                  two thousand ten.

 5        PRESENT:
 6                 ROGER J. MINER,
 7                 JOHN M. WALKER, JR.,
 8                 REENA RAGGI,
 9                      Circuit Judges.
10        _______________________________________

11        SHUI QUAN LIE,
12                 Petitioner,

13                            v.                                         09-0106-ag
14                                                                       NAC
15        ERIC H. HOLDER, Jr., U.S. ATTORNEY
16        GENERAL, *
17                   Respondent.
18        _______________________________________




                          *
                     Pursuant to Federal Rule of Appellate Procedure
              43(c)(2), Attorney General Eric H. Holder, Jr. is
              automatically substituted for former Attorney General
              Michael B. Mukasey as respondent in this case.
1    FOR PETITIONER:        Norman Kwai Wing Wong, New York, New
2                           York.

3    FOR RESPONDENT:        Tony West, Assistant Attorney
4                           General, Cindy S. Ferrier, Senior
5                           Litigation Counsel, Michele Y.F.
6                           Sarko, Attorney, Office of
7                           Immigration Litigation, Civil
8                           Division, United States Department
9                           of Justice, Washington, D.C.

1        UPON DUE CONSIDERATION of this petition for review of a

2    decision of the Board of Immigration Appeals (“BIA”), it is

3    hereby ORDERED, ADJUDGED, AND DECREED that the petition for

4    review is DENIED.

5        Petitioner Shui Quan Lie, a native and citizen of the

6    People’s Republic of China, seeks review of a December 16,

7    2008 order of the BIA affirming the February 5, 2007

8    decision of Immigration Judge (“IJ”) Steven R. Abrams,

9    denying his application for asylum, withholding of removal,

10   and relief under the Convention Against Torture (“CAT”).     In

11   re Shui Quan Lie, No. A099 610 151 (B.I.A. Dec. 16, 2008),

12   aff’g No. A099 610 151 (Immig. Ct. N.Y. City Feb. 5, 2007).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history of the case.

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

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



                                  2
1    Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).         In its

2    decision, the BIA rejected the IJ’s credibility

3    determination but nonetheless found Lie ineligible for

4    relief.    Lie argues that in doing so, the BIA conducted

5    impermissible factfinding.     We disagree.   The BIA assumed

6    the facts as Lie alleged them and reviewed de novo Lie’s

7    eligibility for relief.     Such was a permissible exercise of

8    the BIA’s authority.     See 8 C.F.R. § 1003.1(d)(3)(i)–(ii).

9        We review the agency’s factual findings under the

10   substantial evidence standard.      See 8 U.S.C.

11   § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90,

12   95 (2d Cir. 2008).     We review de novo questions of law and

13   the application of law to undisputed fact.         See Salimatou

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

15       The BIA did not err in finding that Lie failed to

16   establish his eligibility for asylum and withholding of

17   removal.     In Shi Liang Lin v. U.S. Dep’t of Justice, this

18   Court held that the definition of “refugee” under 8 U.S.C.

19   § 1101(a)(42) does not extend automatically to the partners

20   of individuals who have been forcibly sterilized or forced

21   to have an abortion.     494 F.3d 296, 309–10 (2d Cir. 2007)

22   (en banc).     Rather, those persons may qualify for refugee


                                     3
1    status if they “can prove past persecution, or a fear of

2    future persecution for ‘resistance’ that is directly related

3    to [their] own opposition to a coercive family planning

4    policy.”   Id. at 313.   Thus, the BIA properly determined

5    that Lie is not eligible for relief based solely on his

6    wife’s alleged forced sterilization.    See id. at 314; see

7    also Gui Yin Liu v. INS, 508 F.3d 716, 723 (2d Cir. 2007)

8    (per curiam); Shu Wen Sun v. BIA, 510 F.3d 377, 381 (2d Cir.

9    2007) (per curiam).

10       While Shi Liang Lin was decided after Lie’s merits

11   hearing, the BIA did not abuse its discretion by declining

12   to remand the case for further factfinding on the issue of

13   his eligibility for relief due to his “other resistance.”

14   See Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149,

15   156–57 (2d Cir. 2005) (noting that the BIA’s denial of a

16   motion to remand is held to the same substantive standard of

17   review applicable to motions to reopen and reconsider, i.e.,

18   abuse of discretion).    Rather, the BIA properly found that

19   the events Lie described – being fined on two occasions –

20   did not rise to the level of persecution.    See Guan Shan

21   Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.

22   2002) (“While we recognize that economic deprivation may


                                    4
1    constitute persecution, an asylum applicant must offer some

2    proof that he suffered a deliberate imposition of

3    substantial economic disadvantage.” (internal quotation

4    marks omitted)).

5        Moreover, the BIA reasonably found that Lie failed to

6    allege facts showing that he had a well-founded fear of

7    future persecution on account of his other resistance.       See

8    8 U.S.C. § 1101(a)(42); Matter of S-L-L-, 24 I. & N. Dec. 1,

9    10-11 (B.I.A. 2006).   Indeed, Lie advanced no argument

10   before the agency that his failure to pay a fine would give

11   rise to a well-founded fear of future persecution.       See Guan

12   Shan Liao, 293 F.3d at 69-70.       As the BIA found, the record

13   revealed that “14 years [had] elapsed between his wife’s

14   alleged sterilization and his departure from China” without

15   evidence that he or his family were harmed.       See Melgar de

16   Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding

17   that where asylum applicant’s mother and daughters continued

18   to live in petitioner’s native country, the claim of well-

19   founded fear was diminished).

20       In light of the foregoing, the BIA’s denial of Lie’s

21   application for asylum and withholding of removal was not

22   improper. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.


                                     5
1    2006); Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991).

2        Finally, the BIA did not err in finding that Lie did

3    not demonstrate a clear probability of torture based on his

4    illegal departure from China.       See Mu Xiang Lin v. U.S.

5    Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005); cf.

6    Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.

7    2003).

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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