         10-2890-ag
         Fang v. Holder
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A094 787 115
                           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 27th day of April, two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                JON O. NEWMAN,
10                DEBRA ANN LIVINGSTON,
11                     Circuit Judges.
12       ______________________________________
13
14       SHENG WANG FANG,
15                Petitioner,
16
17                        v.                                    10-2890-ag
18                                                              NAC
19       ERIC H. HOLDER, JR.,
20       UNITED STATES ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Cora J. Chang, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Stephen J. Flynn, Assistant
28                                     Director; Lynda A. Do, Attorney,
29                                     Office of Immigration Litigation,
30                                     United States Department of Justice,
31                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Sheng Wang Fang, a native and citizen of the People’s

 6   Republic of China, seeks review of a June 30, 2010, order of

 7   the BIA affirming the January 7, 2008, decision of

 8   Immigration Judge (“IJ”) Joanna M. Bukszpan, denying his

 9   applications for asylum, withholding of removal, and relief

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

11   Wang Fang No. A094 787 115 (B.I.A. June 30, 2010), aff’g No.

12   A094 787 115 (Immig. Ct. N.Y. City Jan. 7, 2008).    We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have

16   considered both the IJ’s and the BIA’s opinions “for the

17   sake of completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237

18   (2d Cir. 2008) (internal quotation marks omitted).     The

19   applicable standards of review are well-established.     See 8

20   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

21   513 (2d Cir. 2009).

22       The agency reasonably determined that Fang’s

23   altercation with family planning officials, in which he was


                                   2
 1   pushed, and the fact that the officials later prevented him

 2   from entering the hospital to see his wife were insufficient

 3   to constitute past persecution.   See Beskovic v. Gonzales,

 4   467 F.3d 223, 226 (2d Cir. 2006) (holding that “the

 5   difference between harassment and persecution is necessarily

 6   one of degree, [which] must be assessed with regard to the

 7   context in which the mistreatment occurs” (internal citation

 8   and quotation marks omitted)); Ivanishvili v. U.S. Dep’t of

 9   Justice, 433 F.3d 332, 342 (2d Cir. 2006) (stating that harm

10   must be sufficiently severe and rise above “mere harassment”

11   to constitute persecution).   The agency also reasonably

12   determined that threats by the family planning officials,

13   related to him by his mother, did not constitute past

14   persecution, see Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d

15   408, 412 (2d Cir. 2006) (per curiam) (noting that “[t]his

16   Court, and others, previously have rejected . . . claims

17   [that] ‘unfulfilled’ threats” constitute persecution), nor

18   does the record compel the conclusion that Fang’s presence

19   during his wife’s abortion constituted such persecution.

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

21   309 (2d Cir. 2007) (“We do not deny that an individual whose

22   spouse undergoes, or is threatened with, a forced abortion

23   or involuntary sterilization may suffer a profound emotional


                                   3
 1   loss as a partner and a potential parent.     But such a loss

 2   does not change the requirement that we must follow the

 3   ‘ordinary meaning’ of the language chosen by Congress,

 4   according to which an individual does not automatically

 5   qualify for ‘refugee’ status on account of a coercive

 6   procedure performed on someone else.”).     Moreover, Fang

 7   failed to identify any evidence supporting his claim of

 8   psychological harm.   See Tao Jiang v. Gonzales, 500 F.3d

 9   137, 141-42 (2d Cir. 2007) (requiring a showing of

10   “continuing hardship” for claims based on persecution of

11   family members).

12       The agency also reasonably determined that Fang did not

13   establish a well-founded fear of future persecution because

14   he testified that neither he nor his wife have received any

15   additional threats, and that his wife, who remains in China

16   unharmed, has an IUD and is in compliance with China’s

17   family planning regulations, Certified Admin. R. at 27.      See

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

19   (per curiam) (finding that absent “solid support in the

20   record” for a petitioner’s fear that he would be persecuted

21   under the family planning policy, his fear was “speculative

22   at best”); see also Melgar de Torres v. Reno, 191 F.3d 307,

23   313 (2d Cir. 1999) (finding that where asylum applicant’s


                                   4
 1   mother and daughters continued to live in petitioner’s

 2   native country, claim of well-founded fear was diminished).

 3       As Fang was unable to establish his eligibility for

 4   asylum, he was necessarily unable to establish his

 5   eligibility for withholding of removal and CAT relief on the

 6   same factual bases.   See Paul v. Gonzales, 444 F.3d 148,

 7   155-56 (2d Cir. 2006).

 8       For the foregoing reasons, the petition for review is

 9   DENIED.

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




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