         10-1754-ag
         Thang v. Holder
                                                                                        BIA
                                                                                  Elstein, IJ
                                                                               A094 798 077
                                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 2nd day of May, two thousand eleven.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                PIERRE N. LEVAL,
 9                JOSÉ A. CABRANES,
10                  Circuit Judges.
11       _______________________________________
12
13       ZHIYUN THANG,
14                Petitioner,
15
16                         v.                                   10-1754-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Richard Tarzia, Belle Mead, New
24                                       Jersey.
25
26       FOR RESPONDENT:                 Tony West, Assistant Attorney
27                                       General; Michelle Gorden Latour,
28                                       Assistant Director; Lindsay M.
29                                       Murphy, Trial Attorney, Office of
30                                       Immigration Litigation, Civil
31                                       Division, United States Department
32                                       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 Zhiyun Thang, a native and citizen of the

 6   People’s Republic of China, seeks review of an April 14,

 7   2010, order of the BIA affirming the May 2, 2008, decision

 8   of Immigration Judge (“IJ”) Annette S. Elstein, denying his

 9   application for asylum, withholding of removal, and relief

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

11   Thang, No. A094 798 077 (B.I.A. Apr. 14, 2010), af’g No.

12   A094 798 077 (Immig. Ct. N.Y. City May 2, 2008).     We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history of the case.

15       Under the circumstances of this case, we have reviewed

16   the decision of the IJ as supplemented by the BIA.     See Yan

17   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The

18   applicable standards of review are well-established.     See

19   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

20   510, 513 (2d Cir. 2009).

21       The BIA reasonably concluded that Thang failed to

22   demonstrate past persecution or a well-founded fear of


                                  2
 1   future persecution.   As the BIA determined, Thang is not

 2   eligible, as a matter of law, for asylum based on his wife’s

 3   forced abortion.   See Shi Liang Lin v. U.S. Dep’t. of

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

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

 6   As Thang did not assert any other incidents of past

 7   persecution, he was not entitled to the presumption of a

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

 9   § 1208.13(b)(1).

10       Substantial evidence also supports the BIA’s

11   determination that Thang failed to establish a well-founded

12   fear of persecution because he and his wife wanted more

13   children.   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 158-

14   68 (2d Cir. 2008); see also Ramsameachire v. Ashcroft, 357

15   F.3d 169, 178 (2d Cir. 2004) (holding that absent past

16   persecution, an alien can demonstrate eligibility for asylum

17   based on a well-founded fear of future persecution by

18   demonstrating that he or she subjectively fears persecution

19   and that this fear is objectively reasonable).   Indeed, the

20   BIA reasonably found that whether Thang and his wife will

21   have additional children in China is speculative.     See Jian

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


                                   3
 1   that, absent solid support in the record for the

 2   petitioner’s assertion that he would be subjected to

 3   persecution, his fear was “speculative at best”).

 4   Additionally, the State Department’s Profile on Asylum

 5   Claims and Country Conditions Report and the 2006 Country

 6   Report on Human Rights Practices both provide that, although

 7   forced sterilizations and fines are imposed on individuals

 8   who violate the family planning policy, policy enforcement

 9   varies by region, and there is no evidence in the record to

10   establish how the policy is enforced in Thang’s home region.

11   Thus, Thang has failed to establish that the BIA erred in

12   concluding that he did not demonstrate his eligibility for

13   asylum based on his and his wife’s desire to have more

14   children.

15       The BIA also reasonably concluded that Thang did not

16   demonstrate a possibility of future persecution based on his

17   application for asylum in the United States, as the record

18   does not support Thang’s claim that the confidentiality of

19   his asylum proceedings was breeched.   Although the record

20   shows that an agent at the Office of the American Consulate

21   General in Guangzhou, China, made telephone inquiries as to

22   whether the doctor listed on the abortion certificate was


                                  4
 1   employed at the Lian Jiang Township Hospital, there was no

 2   evidence to support a finding that the hospital officials

 3   were informed that the inquiry was made in connection with

 4   Thang’s asylum application or that they were given Thang’s

 5   name.     Furthermore, the agent signed a statement indicating

 6   that she was aware of the confidentiality provisions

 7   regarding asylum cases and affirming that the nature of her

 8   investigation was not disclosed to any foreign authorities.

 9   Given this evidence and the fact that Thang did not present

10   any evidence to the contrary, the agency reasonably found

11   that he failed to establish a well-founded fear of

12   persecution on that basis.

13       Because Thang was unable to show the objective

14   likelihood of persecution needed to make out an asylum

15   claim, based on either his desire to have more children or

16   his filing of an asylum application in the United States, he

17   was necessarily unable to meet the higher standard required

18   to succeed on a claim for withholding of removal because

19   both claims rested on the same factual predicate.     See Paul

20   v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

21       For the foregoing reasons, the petition for review is

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


                                     5
 1   removal that the Court previously granted in this petition

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

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

 4   oral argument in this petition is DENIED in accordance with

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

 6   Circuit Local Rule 34.1(b).

 7                                 FOR THE COURT:
 8                                 Catherine O’Hagan Wolfe, Clerk
 9
10
11




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