10-3170-ag
Wang v. Holder
                                                                                BIA
                                                                           Weisel, IJ
                                                                       A088 376 198
                  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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 7th day of October, two thousand eleven.

PRESENT:
         JON O. NEWMAN,
         JOSÉ A. CABRANES,
         RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
_______________________________________

ZHANG FANG WANG,
         Petitioner,

                 v.                                     10-3170-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                Jed S. Wasserman, Kuzmin & Associates,
                               P.C., New York, New York.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Michelle Gorden Latour, Assistant
                               Director; Kimberly A. Burdge, Attor-
                            ney, Office of Immigration Litigation,
                            United States Department of Justice,
                            Washington, D.C.

      UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

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

Republic of China, seeks review of a July 9, 2010, decision of

the   BIA   affirming    the    September     23,   2008,    decision    of

immigration      judge   (“IJ”)    Robert    D.    Weisel,   denying    his

application for asylum, withholding of removal, and relief

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

Fang Wang, No. A088 376 198 (B.I.A. July 9, 2010), aff’g No.

A088 376 198 (Immig. Ct. N.Y. City Sept. 23, 2008).              We assume

the   parties’    familiarity      with   the     underlying    facts   and

procedural history of this case.

      Under the circumstances of this case, we have reviewed

both the BIA’s and IJ’s opinions.           Zaman v. Mukasey, 514 F.3d

233, 237 (2d Cir. 2008).          The applicable standards of review

are well established.          8 U.S.C. § 1252(b)(4)(B); Aliyev v.

Mukasey, 549 F.3d 111, 115 (2d Cir. 2008).




                                    -2-
I.    Family Planning Claim

      Substantial evidence supports the agency’s determination

that Wang failed to establish his eligibility for relief based

on his claim of resistance to China’s family planning policy.

As Wang acknowledges, the agency correctly concluded that he

was not eligible for asylum solely on the basis of his wife’s

forced abortion.         See Shi Liang Lin v. U.S. Dep’t of Justice,

494 F.3d 296, 309-310 (2d Cir. 2007).                Nevertheless, even

though Wang was not per se eligible for asylum based on his

wife’s forced abortion, he could still qualify for relief by

demonstrating that: (1) he engaged in “other resistance” to

the family planning policy; and (2) he suffered harm rising to

the   level    of   persecution    or    has   a   well-founded   fear   of

suffering such harm as a direct result of his resistance. See

id. at 313; 8 U.S.C. § 1101(a)(42); Matter of J-S-, 24 I. & N.

Dec. 520, 523 (A.G. 2008).

      In this case, the agency did not err in finding that Wang

failed to demonstrate that he resisted the family planning

policy because impregnating his wife, on its own, does not

constitute other resistance, see Shi Liang Lin, 494 F.3d at

313 (citation omitted), and family planning officials were not

aware   of    any   of   the   other    purported   acts   of   resistance


                                       -3-
asserted by Wang.        Moreover, even assuming that Wang engaged

in resistance to China’s family planning policy, the agency

reasonably determined that he did not establish that he

suffered harm rising to the level of persecution on account of

that resistance because he did not allege that he personally

suffered any emotional or economic harm arising from the

unfortunate incidents involving family planning officials.

See   Shi    Liang   Lin,    494    F.3d    at    309   (stating   that   “an

individual whose spouse undergoes . . . a forced abortion or

involuntary sterilization may suffer a profound emotional

loss,”      but   providing        that    “an     individual      does   not

automatically qualify for ‘refugee’ status on account of a

coercive     procedure      performed      on    someone   else”   (emphasis

added)); see also Guan Shan Liao v. U.S. Dep’t. of Justice,

293 F.3d 61, 70 (2d Cir. 2002) (finding that the agency

reasonably concluded that the petitioner failed to demonstrate

economic persecution when he did not present any testimony or

other evidence of his income in China, his net worth at the

time of the fines, or any other facts that would make it

possible to evaluate his personal financial circumstances in

relation to the fines imposed by the government for violating

family planning policies); Mei Fun Wong v. Holder, 633 F.3d

64, 72 (2d Cir. 2011) (emphasizing “that persecution is an


                                     -4-
extreme concept that does not include every sort of treatment

our society regards as offensive” (internal quotation marks

and citations omitted)).      Thus, the agency did not err in

finding that Wang failed to establish his eligibility for

relief based on his claim of past persecution.       See 8 U.S.C.

§ 1101(a)(42); 8 C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1).

    Wang does not challenge the agency’s determination that,

independent of his past persecution claim, he failed to

demonstrate a well-founded fear of persecution under the

family   planning   policy.   Accordingly,   that   determination

stands as a valid basis for denying his application for relief

insofar as it was based on Wang’s family planning claims. See

8 C.F.R. § 1208.13(b)(2); see also Paul v. Gonzales, 444 F.3d

148, 156 (2d Cir. 2006).

II. Illegal Departure Claim

    Contrary to Wang’s contention, he did not establish his

eligibility for withholding of removal or CAT relief based on

his illegal departure.    “[T]he possibility that the applicant

may be subjected to criminal prosecution and perhaps severe

punishment as a result of his illegal departure from [his home

country] does not demonstrate a likelihood of persecution

under the Act.”     Matter of Sibrun, 18 I. & N. Dec. 354, 359

(BIA 1983); see also Saleh v. U.S. Dep't of Justice, 962 F.2d
                               -5-
234, 239 (2d Cir. 1992) (“Punishment for violation of a

generally   applicable    criminal     law   is    not   persecution.”).

Additionally, a petitioner is not “entitled to CAT protection

based solely on the fact that []he is part of the large class

of persons who have illegally departed China.”                Mu Xiang Lin

v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir. 2005)

(emphasis in original).

    In his brief, Wang does not cite any record evidence

demonstrating either that authorities would be motivated to

arrest or punish him based on his illegal departure for any

reason   other   than    law   enforcement        or   that   individuals

similarly situated to him have suffered torture upon removal

to China.   Moreover, the 2007 U.S. Department of State report

in the record, “China: Profile of Asylum Claims and Country

Conditions,” provides that:

    The Chinese Government accepts the repatriation of
    citizens   who  have   entered   other   countries   or
    territories illegally.    In the past several years,
    hundreds of Chinese illegal immigrants have been
    returned from the United States, and U.S. Embassy
    officials have been in contact with scores of them. In
    most cases, returnees are detained long enough once
    reaching China for relatives to arrange their travel
    home. Fines are rare. U.S. officials in China have
    not confirmed any cases of abuse of persons returned to
    China from the United States for illegal entry.

Accordingly, the record does not compel the conclusion that

Wang established either a likelihood of persecution on account

                                 -6-
of a protected ground or a likelihood of torture.   See Saleh,

962 F.2d at 239; see also Mu Xiang Lin, 432 F.3d at 160.

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot.    Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




                               -7-
