         09-4355-ag
         Yang v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A093 396 935
                            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 7 th day of May, two           thousand ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                        Circuit Judges.
11       _______________________________________
12
13       ZHI YANG,
14                        Petitioner,
15
16                         v.                                   09-4355-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent. *
21       ______________________________________
22
23
24       FOR PETITIONER:                 Lee Ratner, Law Offices of Michael
25                                       Brown, New York, New York.
26
27


                      *
                   The Clerk of Court is directed to amend the caption
             accordingly.
 1   FOR RESPONDENT:        Melody K. Eaton, Trial Attorney,
 2                          Office of Immigration Litigation,
 3                          for Emily Anne Radford, Assistant
 4                          Director, Office of Immigration
 5                          Litigation, and Tony West, Assistant
 6                          Attorney General, Civil Division,
 7                          United States Department of Justice,
 8                          Washington, D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

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

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

13   is DENIED.

14       Petitioner Zhi Yang, a native and citizen of China,

15   seeks review of the September 30, 2009, order of the BIA

16   affirming the February 15, 2008, decision of Immigration

17   Judge (“IJ”) Steven R. Abrams, denying his application for

18   asylum, withholding of removal, and CAT relief.    In re Zhi

19   Yang, No. A093 396 935 (B.I.A. Sept. 30, 2009), aff’g No.

20   A093 396 935 (Immig. Ct. N.Y. City Feb. 15, 2008).      We

21   assume the parties’ familiarity with the underlying facts

22   and procedural history in this case.

23       Under the circumstances of this case, we review the

24   decision of the IJ as supplemented by the BIA.    See Yan Chen

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

26   applicable standards of review are well-established.         See



                                  2
1    8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

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

3        The agency reasonably concluded that Yang was not

4    eligible for asylum based on his resistance to China’s

5    family planning policy.    See 8 U.S.C. § 1101(a)(42).   Yang

6    claims that he engaged in “other resistance to a coercive

7    population control program” and, as a result, suffered harm

8    rising to the level of persecution.    Id.; see also Shi Liang

9    Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308, 313 (2d

10   Cir. 2007). The evidence before the IJ established that Yang

11   asked the cadres who removed his wife for sterilization to

12   return later due to his wife’s health. He did not express

13   any objection to her being sterilized once she regained her

14   health, or act in any way that suggests resistance to that

15   outcome. In these circumstances, the agency could reasonably

16   conclude that any harm that Yang suffered was not based on a

17   protected ground and therefore could not support a claim for

18   relief.

19       With respect to Yang’s fear of future persecution, he

20   argues only that he was entitled to a presumptively well-

21   founded fear given his past persecution.    However, because

22   we find no error in the agency’s past persecution analysis,


                                    3
1    this argument is unavailing.    In light of the foregoing, the

2    BIA reasonably denied Yang’s application for asylum.      See

3    8 U.S.C. § 1101(a)(42).    Because Yang was unable to

4    establish eligibility for asylum, he was necessarily unable

5    to meet the higher standard required to succeed on a claim

6    for withholding of removal.    See Paul v. Gonzales, 444 F.3d

7    148, 156 (2d Cir. 2006).    Yang does not challenge the

8    agency’s denial of his application for CAT relief.

9        For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition

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

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

14   oral argument in this petition is DENIED in accordance with

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

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19




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