         09-4079-ag
         Zhang v. Holder
                                                                                        BIA
                                                                           Holmes-Simmons, IJ
                                                                                A094 798 076
                            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 17 th day of September, two thousand ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                PETER W. HALL,
 9                DENNY CHIN,
10                   Circuit Judges.
11       _______________________________________
12       ______________________________________
13
14       RI DONG ZHANG,
15                Petitioner,
16
17                         v.                                   09-4079-ag
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Gerald Karikari, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General, John S. Hogan, Senior
28                                     Litigation Counsel, Michael C.
29                                     Heyse, Trial Attorney, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
1                          of Justice, Washington, D.C.
2        UPON DUE CONSIDERATION of this petition for review of a

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

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

5    is DENIED.

6        Petitioner Ri Dong Zhang, a native and citizen of

7    China, seeks review of the September 2, 2009, order of the

8    BIA, affirming the January 8, 2008, decision of Immigration

9    Judge (“IJ”) Theresa Holmes-Simmons denying his application

10   for asylum, withholding of removal, and relief under the

11   Convention Against Torture (“CAT”).   In re Ri Dong Zhang,

12   No. A094 798 076 (B.I.A. Sept. 2, 2009), aff’g No. A094 798

13   076 (Immig. Ct. N.Y. City Jan. 8, 2008).   We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history in this case.

16       Under the circumstances of this case, we review the

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

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

19   applicable standards of review are well-established.

20   See 8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey, 529

21   F.3d 99, 110 (2d Cir. 2008); Corovic v. Mukasey, 519 F.3d

22   90, 95 (2d Cir. 2008).



                                  2
1        Zhang does not contest the agency’s finding that he was

2    not per se eligible for relief based on his wife’s abortion.

3    See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296,

4    309-10 (2d Cir. 2007); Matter of J-S-, 24 I. & N. Dec. 520

5    (AG 2008).     Moreover, we find no error in the agency’s

6    denial of Zhang’s applications for relief based on his

7    alleged “resistance” to China’s coercive population control

8    program.     See Shi Liang Lin, 494 F.3d at 312-13 (discussing

9    “resistance” claims).     As the IJ found, the acts Zhang

10   described –- impregnating his wife, desiring to have more

11   children, and going into hiding –- do not amount to

12   resistance.     Id.; Matter of S-L-L-, 24 I. & N. Dec. 1, 10

13   (BIA 2006) overruled on other grounds by Shi Liang Lin v.

14   U.S. Dep't of Justice, 494 F.3d 296, 309-10 (2d Cir. 2007).

15   Indeed, Zhang acknowledged that he never expressed any

16   displeasure to family planning officials about his wife's

17   abortion.

18       The agency also reasonably found that Zhang’s fear of

19   persecution was not well-founded.     See Ramsameachire v.

20   Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); Diallo v. INS,

21   232 F.3d 279, 284 (2d Cir. 2000).     Contrary to Zhang’s

22   argument, the BIA reasonably found that he did not provide

23   evidence demonstrating that “China sterilizes its citizens

                                     3
1    for not having registered marriage or for having a child

2    from an unregistered marriage,” as he presented evidence

3    only of his subjective fear, and did not provide objective

4    evidence that someone in his circumstances would be

5    sterilized if returned to China.   See Ramsameachire, 357

6    F.3d at 178; Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d

7    Cir. 2005) (explaining that “objective reasonableness

8    entails a showing that a reasonable person in the

9    petitioner’s circumstances would fear persecution if

10   returned to his native country”); see also Diallo, 232 F.3d

11   at 285-86 (finding that this Court defers to the BIA’s rule

12   that “[w]hile consistent, detailed, and credible testimony

13   may be sufficient to carry the alien’s burden, evidence

14   corroborating his story, or an explanation for its absence,

15   may be required where it would reasonably be expected”).

16   Thus, the agency properly denied Zhang’s application for

17   asylum.

18       As Zhang based his application for asylum and

19   withholding of removal on the same factual predicate, it

20   follows that he failed to meet the higher burden of proof

21   with respect to withholding of removal.   See Paul v.

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


                                  4
1        Additionally, although we do have jurisdiction to

2    review the IJ’s denial of Zhang’s application for CAT

3    relief, as the BIA considered the IJ’s denial of such

4    relief, see Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d

5    Cir. 2006) (holding that where the BIA addresses issues not

6    raised by a petitioner, those issues are considered

7    exhausted and may be reviewed by this Court), contrary to

8    Zhang’s argument, he fails to point to any specific evidence

9    in support of his claim that he would likely be tortured

10   based on his illegal departure.    See Mu Xiang Lin v. U.S.

11   Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005)

12   (finding that a petitioner is not “entitled to CAT

13   protection based solely on the fact that he is part of the

14   large class of persons who have illegally departed China”).

15   Thus, the agency did not err in denying Zhang’s application

16   for CAT relief.   Id.

17       For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

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

21   this petition is DENIED as moot.    Any pending request for

22   oral argument in this petition is DENIED in accordance with


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

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5
6




                                   6
