    09-0404-ag
    Hu v. Holder
                                                                                    BIA
                                                                               Weisel, IJ
                                                                            A099 602 080
                    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 27 th day of May, two thousand ten.

    PRESENT:
             JON O. NEWMAN,
             ROBERT A. KATZMANN,
             DEBRA ANN LIVINGSTON,
                     Circuit Judges.
    _________________________________________

    ZHONG YI HU,
             Petitioner,

                   v.                                       09-0404-ag
                                                            NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _________________________________________

    FOR PETITIONER:                Gary J. Yerman, New York, N.Y.

    FOR RESPONDENT:                Tony West, Assistant Attorney
                                   General; John S. Hogan, Senior
                                   Litigation Counsel; Edward E.
                                   Wiggers, Trial Attorney, Office of
                                   Immigration Litigation, United
                                   States Department of Justice,
                                   Washington, DC
    UPON DUE CONSIDERATION of this petition for review of a

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

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

is DENIED.

    Zhong Yi Hu, a native and citizen of the People’s

Republic of China, seeks review of a January 5, 2009, order

of the BIA, which denied his motion to remand and affirmed

the June 26, 2007, decision of Immigration Judge (“IJ”)

Robert D. Weisel, pretermitting his application for asylum,

and denying his applications for withholding of removal and

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

Hui Yan Hu, Zhong Yi Hu, Nos. A099 602 079/080 (B.I.A. Jan.

5, 2009), aff’g in relevant part No. A099 602 079/080

(Immig. Ct. N.Y. City June 26, 2007). 1   We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

    As an initial matter, we note that Hu does not

challenge the agency’s pretermission of his wife’s asylum

application as untimely, and accordingly, he has waived that

issue.   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 546 n.7



    1
      Petitioner’s wife, Hui Yan Hu, is not included as a
petitioner in the instant proceeding.

                              2
(2d Cir. 2005).   Thus, because Hu was a derivative

applicant, his argument that he is eligible for asylum is

unavailing.   See 8 U.S.C. § 1158(b)(3).

    With respect to Hu’s applications for withholding of

removal and CAT relief, the BIA determined that he was not

prima facie eligible for either form of relief. 2   We review

the BIA’s denial of a motion to reopen for abuse of



    2
      In adjudicating Hu’s motion to remand based on
ineffective assistance of counsel, which it appropriately
construed as a motion to reopen, see Li Yong Cao v. U.S.
Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005), the BIA
focused on whether the new documents submitted by Hu with
his motion — and that, Hu claimed, his prior counsel failed
to submit — established his eligibility for withholding of
removal or CAT relief. The BIA found that the evidence Hu
presented with his motion did not show a likelihood of
persecution or torture. The BIA did not specifically
indicate whether this finding established that counsel’s
failure to present such evidence in the first instance was
not prejudicial, see Changxu Jiang v. Mukasey, 522 F.3d 266,
270 (2d Cir. 2008) (providing that a motion to reopen based
on ineffective assistance of counsel must show, inter alia,
that the movant was prejudiced by his counsel’s
performance), or that Hu was simply not eligible for relief,
even in light of the new evidence, see INS v. Abudu, 485
U.S. 94, 104 (1988) (holding that the BIA may deny a motion
to reopen based on its finding that the movant has not
established his prima facie eligibility for relief).
However, under either analysis, the BIA’s ultimate
conclusion was not erroneous. See Bowman Transp., Inc. v.
Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)
(stating that a reviewing court will “uphold a decision of
less than ideal clarity if the agency’s path may reasonably
be discerned.”); see also Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (same).

                              3
discretion.   Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

2006).

    The BIA did not abuse its discretion in determining

that Hu failed to establish his eligibility for relief based

on his fear of forced sterilization following the birth of

his two U.S.-citizen children.    Although Hu points to a

letter from his wife’s female relative stating that she was

forcibly sterilized, the BIA did not err in finding that

this evidence was not material because it did not detail the

forced sterilizations of similarly situated individuals –

namely, males who fathered children outside of China.       See

Jian Hui Shao v. Mukasey, 546 F.3d 138, 160 n.20 (2d Cir.

2008).   Similarly, the BIA did not err in finding that

letters from local family planning committees did not

establish Hu’s eligibility for relief, because they did not

demonstrate that his claimed fear of forced sterilization

was objectively reasonable by merely referencing the family

planning policy’s mandatory sterilization requirement

without any indication that such sterilizations are

performed by force.   See id. at 172.   Finally, the record

does not demonstrate that Hu would face the imposition of

penalties amounting to economic persecution upon his return


                              4
to China.     Specifically, he points to “[n]o testimony or

other evidence . . . regarding [his] income in China, his

net worth . . . , or any other facts that would make it

possible for us to evaluate his personal financial

circumstances in relation to the [anticipated] fines.”        Guan

Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.

2002); see also Jian Hui Shao, 546 F.3d at 161-62.

    Because Hu failed to establish his eligibility for

withholding of removal, he also necessarily failed to

establish his eligibility for CAT relief, insofar as both

claims share the same factual predicate.     See Xue Hong Yang

v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2006).

Thus, the BIA did not abuse its discretion in denying his

motion to remand.     See Li Yong Cao v. U.S. Dep’t of Justice,

421 F.3d 149, 156 (2d Cir. 2005)

    For the foregoing reasons, the petition for review is

DENIED.     As we have completed our review, the pending motion

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



                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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