         11-3386-ag                                                                     BIA
         Cao v. Holder                                                              Hom, IJ
                                                                               A088 372 097



                          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 20th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                RAYMOND J. LOHIER, JR.,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       DONG GUANG CAO,
14                Petitioner,
15
16                       v.                                     11-3386-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Vlad Kuzmin, New York, New York.
24
25       FOR RESPONDENT:               Stuart T. Delery, Acting Assistant
26                                     Attorney General; Blair T. O’Connor,
27                                     Assistant Director; John B. Holt,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 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       Dong Guang Cao, a native and citizen of the People’s

 6   Republic of China, seeks review of an August 3, 2011 order

 7   of the BIA affirming the November 25, 2009 decision of an

 8   Immigration Judge (“IJ”) denying his application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).    In re Dong Guang Cao, No. A088 372

11   097 (B.I.A. Aug. 3, 2011), aff’g No. A088 372 097 (Immig.

12   Ct. N.Y. City Nov. 25, 2009).       We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.   The applicable standards of review are well

15   established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

16   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

17       Cao asserts that he was persecuted under China’s

18   coercive family planning policy because his wife was

19   subjected to forced abortions and he was beaten by family

20   planning authorities, who threatened to sterilize him.

21   Under 8 U.S.C. § 1101(a)(42), an individual is not per se

22   eligible for asylum based on a forced abortion of a spouse

23   or partner because “applicants can become candidates for

                                     2
 1   asylum relief only based on persecution that they themselves

 2   have suffered or must suffer.”   Shi Liang Lin v. U.S. Dep’t

 3   of Justice, 494 F.3d 296, 308 (2d Cir. 2007) (en banc); see

 4   also Matter of J-S-, 24 I. & N. Dec. 520, 536-37 (A.G. 2008)

 5   (adopting the holding in Shi Liang Lin).   Thus, in order to

 6   establish eligibility for asylum, Cao must demonstrate

 7   “‘other resistance to a coercive population control

 8   program’” and that he was persecuted on account of that

 9   resistance or has “‘a well founded fear that he or she will

10   be . . . subject to persecution for such . . . resistance.’”

11   Shi Liang Lin, 494 F.3d at 309-10 (quoting 8 U.S.C. §

12   1101(a)(42)).

13         The agency reasonably concluded that Cao did not

14   establish past persecution on account of his resistance to

15   China’s family planning policies.   Contrary to Cao’s

16   arguments, the agency addressed the cumulative effect of the

17   alleged incidents of harm, Poradisova v. Gonzales, 420 F.3d

18   70, 80 (2d Cir. 2005), and reasonably found that the harm

19   was insufficiently severe to constitute persecution because

20   Cao was not detained and suffered no physical injuries or

21   other lasting effects, see Jian Qiu Liu v. Holder, 632 F.3d

22   820, 821-22 (2d Cir. 2011) (per curiam); Gui Ci Pan v. U.S.


                                  3
 1   Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006) (per curiam);

 2   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341-42

 3   (2d Cir. 2006).

 4       As the agency did not err in concluding that Cao failed

 5   to establish past persecution, he is not entitled to a

 6   presumption of future persecution.     See 8 C.F.R.

 7   §§ 1208.13(b)(1), 1208.16(b)(1).     Moreover, the agency

 8   reasonably concluded that Cao did not establish an

 9   objectively reasonable well-founded fear of future

10   persecution independent of his past persecution claim based

11   on a lack of solid support in the record.     See 8 C.F.R.

12   § 1208.13(b); Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129

13   (2d Cir. 2005) (absent “solid support in the record,” a fear

14   of persecution is “speculative at best”).     As the BIA noted,

15   the 2007 State Department Profile on Asylum Claims and

16   Country Conditions, which Cao submitted into evidence,

17   contradicts his argument that he is likely to be sterilized

18   if returned to China.

19       Cao argues the fact that his wife has not yet been

20   sterilized makes it more likely that he will be sterilized

21   if removed to China.    However, the agency considered this

22   same argument, and reasonably reached the opposite


                                    4
 1   conclusion: lax enforcement of the family planning policy

 2   diminishes the likelihood of Cao’s future forcible

 3   sterilization.   Accordingly, Cao has not shown that a

 4   reasonable fact-finder would be compelled to conclude that

 5   he presented objective evidence to support his assertion

 6   that he would be sterilized.   See Siewe v. Gonzales, 480

 7   F.3d 160, 167 (2d Cir. 2007) (“Where there are two

 8   permissible views of the evidence, the factfinder’s choice

 9   between them cannot be clearly erroneous.”).     Because Cao

10   did not establish a well-founded fear of persecution, he

11   necessarily cannot meet the more difficult burden of showing

12   it is more likely than not he will be persecuted if he

13   returns to China.   Thus, the agency did not err in denying

14   asylum and withholding of removal.   See 8 C.F.R.

15   §§ 1208.13(b), 1208.16(b).

16       Finally, Cao’s generalized argument that he established

17   eligibility for CAT relief, without citing the

18   administrative record, fails to compel reversal of the BIA’s

19   contrary conclusion.   See Mu Xiang Lin v. U.S. Dep’t of

20   Justice, 432 F.3d 156, 160 (2d Cir. 2005).     Moreover, as the

21   agency did not err in concluding that Cao failed to

22   establish past persecution or a well-founded fear of future

23   persecution if returned to China, it did not err in denying
                                    5
 1   asylum and withholding of removal, or CAT relief as all

 2   three claims share the same factual predicate.    Paul v.

 3   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (withholding of

 4   removal); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

 5   520, 523 (2d Cir. 2005) (CAT relief).

 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
16
17




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