         10-52-ag                                                                       BIA
         Zheng v. Holder                                                        Schoppert, IJ
                                                                               A099 583 089



                             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 24th day of February, two thousand eleven.
 5
 6       PRESENT:
 7                         GUIDO CALABRESI,
 8                         ROSEMARY S. POOLER,
 9                         RICHARD C. WESLEY,
10                              Circuit Judges.
11
12       _______________________________________
13
14       YI QUAN ZHENG,
15                Petitioner,
16
17                          v.                                  10-52-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL, UNITED STATES
21       DEPARTMENT OF JUSTICE,
22                Respondents.
23       _______________________________________
24
25       FOR PETITIONER:                 Dehai Zhang, Flushing, New York.
26
27       FOR RESPONDENTS:                Tony West, Assistant Attorney
28                                       General; Leslie McKay, Assistant
 1                          Director; Ilissa M. Gould, Attorney,
 2                          Office of Immigration Litigation,
 3                          United States Department of Justice,
 4                          Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

 7   Board of Immigration Appeals (“BIA”) decision, it is hereby

 8   ORDERED, ADJUDGED, AND DECREED, that the petition for review

 9   is DENIED.

10       Yi Quan Zheng, a native and citizen of China, seeks

11   review of a December 31, 2009, order of the BIA affirming

12   the March 6, 2008, decision of Immigration Judge (“IJ”)

13   Douglas B. Schoppert, which denied his application for

14   asylum, withholding of removal, and relief under the

15   Convention Against Torture (“CAT”).    In re Zheng, No. A099

16   583 089 (B.I.A. Dec. 31, 2009), aff’g No. A099 583 089

17   (Immig. Ct. N.Y. City Mar. 6, 2008).   We assume the parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20       Under the circumstances of this case, we review the
21   decision of the IJ as supplemented by the BIA.    See Yan Chen
22   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).   The
23   applicable standards of review are well-established.     See
24   Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);

25   Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007). The


                                  2
 1   only issue before us is whether the agency erred in denying

 2   Zheng’s application for asylum, as Zheng has not challenged
 3   the denial of withholding of removal and CAT relief before

 4   this Court.
 5       In Shi Liang Lin we determined that, under 8 U.S.C.

 6   § 1101(a)(42), an individual is not per se eligible for
 7   asylum based on the forced abortion or sterilization of a
 8   spouse or partner because “applicants can become candidates

 9   for asylum relief only based on persecution that they

10   themselves have suffered or must suffer.”   Shi Liang Lin v.
11   U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir. 2007); see

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

13   (adopting this Court’s holding in Shi Liang Lin).   As the
14   BIA noted, Zheng does not dispute that he is ineligible for

15   asylum based on his wife’s sterilization under Shi Liang

16   Lin, but rather argues that the agency’s application of the
17   standard articulated in Shi Liang Lin and Matter of J-S-

18   should not be applied retroactively.   Zheng further contends
19   that the agency’s application of the Shi Liang Lin decision
20   to his case violated his due process rights, and that this

21   error warrants remand to the agency for a nunc pro tunc
22   exercise of discretion.   The purpose of the nunc pro tunc

23   doctrine is “to return aliens to the position in which they
24   would been, but for a significant error in their immigration

                                   3
 1   proceedings.”    Edwards v. INS, 393 F.3d 299, 308-09 (2d Cir.

 2   2004).   As a general rule, the BIA applies the law in effect
 3   at the time it enters its decision.    See 8 C.F.R.

 4   § 1003.1(d)(3)(ii); c.f. NLRB v. Coca-Cola Bottling Co., 55
 5   F.3d 74, 78 (2d Cir. 1995).   In this case, because we issued

 6   Shi Liang Lin prior to the IJ’s decision, the agency’s
 7   application of the standard articulated in that case was
 8   appropriate.    See Shou Wei Jin v. Holder, 572 F.3d 392, 397

 9   (7th Cir. 2009); Yu v. U.S. Atty. Gen., 568 F.3d 1328, 1333-

10   34 (11th Cir. 2009).    Zheng argues however that his
11   situation is analogous to the situation of the petitioners

12   in INS v. St. Cyr, 533 U.S. 289 (2001), and Edwards, 393

13   F.3d 299, and that he is therefore entitled to a remand for
14   nunc pro tunc relief.   In both Edwards and St. Cyr, the

15   applicable statutes changed after petitioners had acted in

16   reliance on the prior versions of the law.   Conversely, Shi
17   Liang Lin did not constitute a change in law, but rather

18   interpreted the meaning of 8 U.S.C. § 1101(a)(42).      See Shi
19   Liang Lin, 494 F.3d at 308; see also Yu, 568 F.3d at 1333-
20   34.   Accordingly, the agency correctly applied Shi Liang Lin

21   to Zheng’s case, and Zheng is not entitled to a remand for
22   nunc pro tunc relief; nor is he eligible for asylum based on

23   his wife’s forced sterilization alone.
24         In the absence of per se persecution based on his

                                    4
 1   wife’s sterilization, Zheng must show “other resistance to a

 2   coercive population control program” and that he was
 3   persecuted as a result of that resistance.    Shi Liang Lin,

 4   494 F.3d at 309-10.   The agency did not err in finding that
 5   while Zheng may have engaged in resistance to a coercive

 6   population control program, he did not suffer persecution as
 7   a result of that resistance.   The BIA has defined
 8   persecution as a “threat to the life or freedom of, or the

 9   infliction of suffering or harm upon, those who differ in a

10   way regarded as offensive.” Matter of Acosta, 19 I. & N.
11   Dec. 211, 222 (BIA 1985), overruled, in part, on other

12   grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); accord

13   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d
14   Cir. 2006).   The harm must be sufficiently severe, rising

15   above “mere harassment.” Ivanishvili, 433 F.3d at 341.       As

16   the agency noted, Zheng claimed only to have suffered harm
17   when family planning officials came to his house in order to

18   bring his wife to the hospital to be sterilized.     When he
19   tried to run to his wife and stop the officials, they
20   grabbed him and forced him to the ground.    The officials

21   held him on the ground until other officials left with his
22   wife, at which point Zheng was released.    The family

23   planning officials did not harm Zheng in any other way, and
24   he was never fined by the government, nor did he suffer any

                                    5
 1   other economic repercussions as a result of his resistance.

 2   Thus, because the incident at Zheng’s house constituted the
 3   entirety of the harm he suffered, the agency did not err in

 4   finding that it did not amount to persecution.   See
 5   Ivanishvili, 433 F.3d at 341; see also Beskovic v. Gonzales,

 6   467 F.3d 223, 226 (2d Cir. 2006).   Accordingly, the agency
 7   did not err in denying Zheng’s application for asylum.   See

 8   8 C.F.R. § 1208.16(b).

 9       For the foregoing reasons, the petition for review is

10   DENIED.   As we have completed our review, the pending motion

11   for a stay of removal in this petition is DISMISSED as moot.

12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe, Clerk
14




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