         10-2395-ag
         Wang v. Holder
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A097 847 390
                               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 3rd day of May, two thousand eleven.
 5
 6       PRESENT:
 7                RALPH K.WINTER,
 8                ROGER J. MINER,
 9                ROBERT A. KATZMANN,
10                     Circuit Judges.
11       _______________________________________
12
13       Guoqiang Wang,
14                Petitioner,
15
16                        v.                                    10-2395-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                Joe Zhenghong Zhou, Flushing, New
24                                      York.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General; David V. Bernal, Assistant
28                                      Director; Lance L. Jolley, Trial
29                                      Attorney, Office of Immigration
30                                      Litigation, Civil Division, United
31                                      States Department of Justice,
32                                      Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DISMISSED in part and DENIED in part.

 5       Petitioner Guoqiang Wang, a native and citizen of the

 6   People’s Republic of China, seeks review of a May 21, 2010,

 7   order of the BIA affirming the September 16, 2008, decision

 8   of Immigration Judge (“IJ”) Joanna Miller Bukszpan,

 9   pretermitting his asylum application and denying his

10   application for withholding of removal and relief under the

11   Convention Against Torture (“CAT”).   In re Guoqiang Wang,

12   No. A097 847 390 (B.I.A. May 21, 2010), aff’g No. A097 847

13   390 (Immig. Ct. N.Y. City Sept. 16, 2008).   We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history of the case.

16       Under the circumstances of this case, we review the

17   IJ’s decision as modified by the BIA decision.    See Xue Hong

18   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

19   2005).   The applicable standards of review are well-

20   established.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

21   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

22       We are without jurisdiction to consider Wang’s


                                   2
 1   challenge to the IJ’s factual determination that he did not

 2   demonstrate changed circumstances materially affecting his

 3   eligibility for asylum.    See 8 U.S.C. 1158(a)(3); see also

 4   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d

 5   Cir. 2006).   We review only Wang’s challenge to the agency’s

 6   denial of his application for withholding of removal.

 7       The agency properly held that Wang was not eligible, as

 8   a matter of law, for withholding of removal based on his

 9   wife being forced to wear an intrauterine device.    See Shi

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

11   2007); see also Gui Yin Liu v. INS, 508 F.3d 716, 723 (2d

12   Cir. 2007).   The BIA also reasonably concluded that even

13   assuming Wang demonstrated “other resistance,” he failed to

14   demonstrate past persecution or a well-founded fear of

15   future persecution on account of that resistance.    See

16   8 U.S.C. § 1101(a)(42).   Although Wang claimed that he

17   suffered past persecution, he did not allege that he was

18   physically harmed or mistreated by family planning

19   officials.    See Ivanishvili v. U.S. Dep’t of Justice, 433

20   F.3d 332, 340-41 (2d Cir. 2006).   The BIA reasonably found

21   that Wang did not suffer past persecution based on his claim

22   that he was forced into hiding because it is unclear from


                                    3
 1   the record that the Chinese government knew that Wang went

 2   into hiding or that it was necessary that he do so.     See id.

 3   at 341 (holding that the difference between harassment and

 4   persecution is “necessarily one of degree that must be

 5   decided on a case-by-case basis”).   Moreover, Wang failed to

 6   demonstrate past persecution because, although he was fined

 7   a total of 8,000 RMB, he did not demonstrate that his

 8   payment of the fine constituted a substantial economic

 9   disadvantage.   See Guan Shan Liao v. U.S. Dep’t of Justice,

10   293 F.3d 61, 69-70 (2d Cir. 2002); see also In re T-2-, 24

11   I. & N. Dec. 163, 171- 75 (BIA 2007).

12       In the absence of any record evidence to support his

13   claim that his fear was objectively reasonable, the BIA also

14   did not err in finding that Wang failed to demonstrate a

15   reasonable possibility of future persecution.   See Jian Xing

16   Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per curiam).

17   It was not improper for the agency to consider Wang’s fear

18   to be diminished because he testified that his wife, who he

19   alleged also had been threatened with forced sterilization

20   based on the birth of their three children, continued to

21   live in China without incurring any harassment or

22   mistreatment.   See Melgar de Torres v. Reno, 191 F.3d 307,


                                   4
 1   313 (2d Cir. 1999).

 2       For the foregoing reasons, the petition for review is

 3   DISMISSED in part and DENIED in part.   As we have completed

 4   our review, any stay of removal that the Court previously

 5   granted in this petition is VACATED, and any pending motion

 6   for a stay of removal in this petition is DISMISSED as moot.

 7   Any pending request for oral argument in this petition is

 8   DENIED in accordance with Federal Rule of Appellate

 9   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

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