         10-3169-ag
         Wang v. Holder
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A099 535 726
                               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 7th day of July, two thousand eleven.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                GUIDO CALABRESI,
 9                RAYMOND J. LOHIER, JR.,
10                      Circuit Judges.
11       _______________________________________
12
13       XIU YUNG WANG,
14                Petitioner,
15
16                        v.                                    10-3169-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                Jed S. Wasserman, Kuzmin &
24                                      Associates, P.C., New York, New
25                                      York.
26
27       FOR RESPONDENT:                Tony West, Assistant Attorney
28                                      General; Keith I. McManus, Senior
29                                      Litigation Counsel; Joseph A.
30                                      O’Connell, Attorney, Office of
31                                      Immigration Litigation, Civil
32                                      Division, United States Department
33                                      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 Xiu Yung Wang, a native and citizen of the

 6   People’s Republic of China, seeks review of a July 20, 2010

 7   decision of the BIA, affirming the October 23, 2008 decision

 8   of Immigration Judge (“IJ”) Gabriel C. Videla, denying

 9   Wang’s application for asylum, withholding of removal, and

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

11   Xiu Yung Wang, No. A099 535 726 (B.I.A. July 20, 2010),

12   aff’g No. A099 535 726 (Immigr. Ct. N.Y. City Oct. 23,

13   2008).   We assume the parties’ familiarity with the

14   underlying facts and procedural history of the case.

15       Under the circumstances of this case, we review the

16   IJ’s decision as modified and supplemented by the BIA.     See

17   Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

18   (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

19   Cir. 2005).    The applicable standards of review are well-

20   established.    See 8 U.S.C. § 1252(b)(4)(B) (2006); Yanqin

21   Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

22



                                    2
 1   I.   Past Persecution

 2        The record supports the agency’s determination that

 3   Wang failed to demonstrate that she suffered past

 4   persecution.   Although Wang argues that she suffered past

 5   persecution because Chinese officials twice interfered with

 6   her religious gatherings and threatened her to the extent

 7   that she could not practice her Christian religion without

 8   fear of punishment, the BIA reasonably found that the

 9   incidents she described did not rise to the level of

10   persecution.   Because Wang was not harmed or detained during

11   either of these incidents, and because the courts have

12   generally rejected claims of past persecution based on

13   unfulfilled threats alone, see Guan Shan Liao v. U.S. Dep’t

14   of Justice, 293 F.3d 61, 70 (2d Cir. 2002) (stating that a

15   “threat of detention . . . itself . . . is not past

16   persecution”), a reasonable fact-finder would not be

17   compelled to find that Wang met her burden of establishing

18   either that any threats she received from Chinese officials

19   rose to the level of persecution or that she was unable to

20   practice her religion.   See Diallo v. INS, 232 F.3d 279, 287

21   (2d Cir. 2000) (holding that this Court will “reverse [the

22   BIA] only if no reasonable fact-finder could have failed to


                                   3
 1   find the past persecution or fear of future persecution

 2   necessary to sustain the petitioner’s burden”).

 3   II. Well-Founded Fear of Persecution

 4       Because Wang failed to demonstrate that she suffered

 5   past persecution, she was not entitled to a presumption of a

 6   well-founded fear of future persecution.       See 8 C.F.R.

 7   § 1208.13(b) (2011).   It was not improper for the agency to

 8   consider Wang’s claim of a well-founded fear of persecution

 9   to be diminished because she testified that her parents and

10   brother were Christian and lived in China and presented no

11   evidence to indicate that they were being harmed by the

12   Chinese government.    See Melgar de Torres v. Reno, 191 F.3d

13   307, 313 (2d Cir. 1999) (finding that where asylum

14   applicant’s mother and daughters continued to live in

15   petitioner’s native country, her well-founded fear claim was

16   diminished).   Although Wang explains that her family has

17   remained unharmed because, unlike her, they attend the

18   patriotic church and not house gatherings, Wang testified

19   that her parents were present at the first gathering that

20   was interrupted by officials.       Thus, the BIA reasonably

21   found that Wang’s family was similarly situated to her, and

22   it did not err in finding that her claim of a well-founded

23   fear of persecution was diminished.       See id.

                                     4
 1       Furthermore, Wang does not point to any evidence

 2   corroborating her fear of future persecution due to her

 3   religion.    The agency reasonably concluded that she failed

 4   to demonstrate a well-founded fear because her father’s

 5   letter indicated only that he feared harm would come to Wang

 6   due to her illegal departure.       Additionally, Wang stated to

 7   a Border Patrol agent that she came to the United States to

 8   earn money and did not fear returning to China.       See Jian

 9   Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding

10   that a fear is not objectively reasonable if it lacks “solid

11   support” in the record and is merely “speculative at best”).

12       Lastly, there is no merit to Wang’s contention that the

13   BIA failed to consider the 2008 State Department Country

14   Report.     See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

15   315, 337 n.17 (2d Cir. 2006) (presuming that the agency “has

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

17   the record compellingly suggests otherwise”).       Although the

18   BIA did not specifically address the report, the BIA’s

19   decision indicates that it considered Wang’s evidence in

20   some detail.    Moreover, although the report provides that

21   the Chinese government’s repression of religious freedom has

22   intensified in some areas, it also indicated that, in some

23   regions, house churches are able to meet openly.

                                     5
 1   Accordingly, there is nothing in the record that suggests

 2   that the BIA failed to consider the report.    See Xiao Ji

 3   Chen, 471 F.3d at 337 n.17.

 4       Because Wang is unable to show the objective likelihood

 5   of persecution needed to make out an asylum claim based on

 6   her Christian religion, she necessarily is unable to meet

 7   the higher standard required to succeed on a claim for

 8   withholding of removal or CAT relief, as all three claims

 9   rest on the same factual predicate.    See Paul v. Gonzales,

10   444 F.3d 148, 155–56 (2d Cir. 2006).

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

14   is VACATED, and any pending motion for a stay of removal in

15   this petition is DISMISSED as moot.    Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2) and Second

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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