         09-4397-ag
         Wang v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A099 927 182
                           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 2 nd day of June, two thousand ten.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _______________________________________
12
13       YONGFANG WANG,
14                Petitioner,
15
16                        v.                                    09-4397-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Weishan Wang, Capital Law Group,
24                                     LLP, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Jamie M. Dowd, Senior
28                                     Litigation Counsel; Bernard A.
29                                     Joseph, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
33
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        Yongfang Wang, a native and citizen of the People’s

6    Republic of China, seeks review of a September 28, 2009

7    order of the BIA affirming the February 8, 2008 decision of

8    Immigration Judge (“IJ”) Alan A. Vomacka, which denied his

9    application for asylum, withholding of removal, and relief

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

11   Yongfang Wang, No. A099 927 182 (B.I.A. Sept. 28, 2009),

12   aff’g No. A099 927 182 (Immig. Ct. N.Y. City Feb. 8, 2008).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Because the BIA’s decision did not address the IJ’s

16   adverse credibility determination, we “assume, but do not

17   determine” Wang’s credibility in assessing whether the BIA

18   correctly upheld the IJ’s determination that Wang failed to

19   meet his burden of proof. See Yan Chen v. Gonzales, 417 F.3d

20   268, 271 (2d Cir. 2005).     We review the denial of an

21   application for asylum under the “substantial evidence”

22   standard.     Wu Biao Chen v. I.N.S., 344 F.3d 272, 275 (2d

23   Cir. 2003).     We will uphold the agency’s factual findings so

                                     2
1    long as they are supported by “reasonable, substantial, and

2    probative” evidence in the record, and reverse an agency’s

3    denial of relief only if “no reasonable fact-finder could

4    have failed to find . . . past persecution or fear of future

5    persecution.”     Id.

6        Wang applied for relief based on a fear of future

7    persecution due to his resistance to China’s one-child

8    policy.     He states that he and his wife attempted to violate

9    the one-child policy.     Wang’s wife had a private doctor

10   remove an IUD that the government had implanted after the

11   birth of their first child.     Soon after, she became pregnant

12   and Wang took her to his sister’s house to hide her.     After

13   his wife failed to attend a mandatory birth control

14   examination, family planning officials found her and forced

15   her to undergo an abortion.     Three months after the

16   procedure, Wang’s wife was forced to have another IUD

17   inserted.     Wang did not allege any contact between family

18   planning officials and him or his wife after this second

19   forced IUD procedure.

20       A spouse of someone who was forced to undergo an

21   abortion or sterilization is not automatically considered a

22   “refugee.”     Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d



                                     3
1    296, 309-12 (2d Cir. 2007)(en banc); see 8 U.S.C.

2    § 1101(a)(42).     To qualify for “refugee” status, a spouse

3    must demonstrate “‘other resistance to a coercive population

4    control program,’ or ‘a well founded fear that he or she

5    will be subject to persecution for such resistance.’”     Id.

6    at 309-10, quoting 8 U.S.C. § 1101(a)(42) (ellipses

7    omitted).

8        On appeal, Wang claims that the record evidence compels

9    the conclusion that he has a well founded fear of

10   persecution based on the requisite “other resistance.”

11   Contrary to Wang’s assertion, the agency reasonably

12   determined that, even assuming that he engaged in “other

13   resistance” to China’s family planning policy, he failed to

14   demonstrate a well-founded fear of persecution on account of

15   that resistance.     The agency found that Wang failed to: (1)

16   demonstrate that he “was threatened by birth control policy

17   enforcers as a result of demonstrating actual resistance to

18   birth control policies”; or (2) point to any record evidence

19   demonstrating a reasonable possibility that he would be

20   sterilized or otherwise persecuted upon his return to China.

21   Wang’s citation to a 2007 U.S. State Department Country

22   Profile for China failed to establish that he had an


                                     4
1    objectively well-founded fear of future persecution, and he

2    provided no other evidence that would compel a factfinder to

3    conclude that such a well-founded fear of future persecution

4    existed.     The agency’s finding that Wang did not have an

5    objectively reasonable fear of persecution was supported by

6    substantial evidence.     See Ramsameachire v. Ashcroft, 357

7    F.3d 169, 178 (2d Cir. 2004) (requiring a petitioner to

8    establish that he subjectively fears persecution and that

9    the fear be objectively reasonable).

10       Because Wang was unable to carry his burden of proof

11   for asylum, he was necessarily unable to meet the higher

12   standard required to succeed on a claim for withholding of

13   removal.     See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

14   2006).     Wang does not challenge the agency’s denial of his

15   CAT claim before this Court.

16       For the foregoing reasons, the petition for review is

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

18   removal that the Court previously granted in this petition

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

20   this petition is DISMISSED as moot.

21                                 FOR THE COURT:

22                                 Catherine O’Hagan Wolfe, Clerk

23

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