         09-2757-ag
         Li v. Holder
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A099 683 902
                         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 22 nd day of July, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                    Chief Judge,
 9                DEBRA ANN LIVINGSTON,
10                DENNY CHIN,
11                    Circuit Judges.
12       _____________________________________
13
14       GUANG MING LI,
15                Petitioner,
16
17                      v.                                      09-2757-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Richard Tarzia,
25                                     Belle Mead, New Jersey.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Luis E. Perez, Senior
29                                     Litigation Counsel; Edward C.
1                           Durant, Attorney, Office of
2                           Immigration Litigation, United
3                           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       Guang Ming Li, a native and citizen of the People’s

11   Republic of China, seeks review of a May 29, 2009, order of

12   the BIA, affirming the February 14, 2008, decision of

13   Immigration Judge (“IJ”) Gabriel C. Videla, which denied his

14   application for asylum and withholding of removal.     In re

15   Guang Ming Li, No. A099 683 902 (B.I.A. May 29, 2009), aff’g

16   No. A099 683 902 (Immig. Ct. N.Y. City Feb. 14, 2008).     We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       Under the circumstances of this case, we review the

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

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

22   applicable standards of review are well-established.     See

23   Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);

24   Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d

25   Cir. 2007).


                                  2
1        Li argues that his wife’s sterilization constituted

2    past persecution with respect to his asylum claim because it

3    prevented him from “being allowed to enjoy the basic human

4    right of procreating with his wife.”   This argument fails,

5    because, as the agency noted, we have squarely rejected the

6    notion that an alien is per se eligible for relief based on

7    the forced sterilization of his or her spouse.   See Shi

8    Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309 (2d

9    Cir. 2007).

10       While the involuntary sterilization of one’s spouse is

11   not per se persecution, applicants may base their claims on

12   “persecution that they themselves have suffered or must

13   suffer” on account of their “other resistance” to a coercive

14   family planning policy.   Shi Liang Lin, 494 F.3d at 308-10;

15   8 U.S.C. § 1101(a)(42).   Li argues that he was persecuted

16   for resisting family planning officials, and that the BIA

17   erred in finding that he never testified to fighting with

18   the officials.   However, the BIA did not err in finding that

19   Li’s claim on appeal differed from his claim before the IJ.

20   See 8 C.F.R. § 1003.1(d)(3)(iv).   Indeed, while Li argued

21   before the BIA that he fought with family planning cadres in

22   an attempt to prevent his wife’s sterilization, he testified


                                   3
1    before the IJ that he was away “at sea” when his wife was

2    forcibly sterilized.   Accordingly, the BIA’s finding that Li

3    “never testified that he fought with these officials” was

4    supported by substantial evidence.   See Salimatou Bah, 529

5    F.3d at 110.

6        In his brief before this Court, Li points to his

7    testimony that he confronted the family planning officials

8    after his wife’s sterilization, suggesting that he thereby

9    raised a claim of past persecution based on his “other

10   resistance” to the family planning policy.   While the record

11   reflects that Li testified to a confrontation he had with

12   the family planning officials after his wife’s

13   sterilization, that testimony did not provide a basis for

14   Li’s argument on appeal before the BIA.   To the extent that

15   Li raises this incident as a basis for his claim of past

16   persecution before this Court, we decline to consider the

17   claim in the first instance.   See Lin Zhong v. U.S. Dep’t of

18   Justice, 480 F.3d 104, 122 (2d Cir. 2007).   Moreover, even

19   if the BIA erred in failing to construe Li’s argument on

20   appeal as referring to the confrontation after his wife’s

21   sterilization, remand on that basis would be futile because

22   we can “confidently predict” that the agency would find that


                                    4
1    this incident – in which Li was merely threatened with

2    detention – did not constitute past persecution.    See Xiao

3    Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.

4    2006) (holding that remand is futile “when the reviewing

5    court can ‘confidently predict’ that the agency would reach

6    the same decision absent the errors that were made” (quoting

7    Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d

8    Cir. 2005)); Guan Shan Liao v. U.S. Dep’t of Justice, 293

9    F.3d 61, 70 (2d Cir. 2002) (stating that a “threat of

10   detention . . . itself . . . is not past persecution”).

11       Finally, to the extent that Li argues that he fears

12   persecution based on his illegal departure, because he

13   failed to exhaust this claim before the BIA, we decline to

14   address it.   See Lin Zhong, 480 F.3d at 122.   Because Li’s

15   withholding of removal claim was based on the same set of

16   facts as his asylum claim, the agency’s reasonable finding

17   that he had not met his burden of proof with respect to

18   asylum was a sufficient basis to deny both forms of relief.

19   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

20       For the foregoing reasons, the petition for review is

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

22   removal that the Court previously granted in this petition

23   is VACATED, and any pending motion for a stay of removal in
                                  5
1   this petition is DENIED as moot.    Any pending request for

2   oral argument in this petition is DENIED in accordance with

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

4   Circuit Local Rule 34.1(b).

5                                 FOR THE COURT:
6                                 Catherine O’Hagan Wolfe, Clerk
7




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