    08-5168-ag
    Chen v. Holder
                                                                                  BIA
                                                                           Opaciuch, IJ
                                                                          A097 478 705
                                                                          A097 478 706
                      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 29 th day of July, two thousand ten.

    PRESENT:
             ROBERT D. SACK,
             REENA RAGGI,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    XIU MEI CHEN, JI YAN XIAO,
             Petitioners,

                     v.                                    08-5168-ag
                                                           NAC
    ERIC H. HOLDER, JR., 1 U.S. ATTORNEY
    GENERAL,
             Respondent.
    _____________________________________




                 1
              Pursuant to Federal Rule of Appellate Procedure
        43(c)(2), Attorney General Eric H. Holder, Jr., is
        automatically substituted for former Attorney General
        Michael B. Mukasey as the respondent in this case.
FOR PETITIONERS:       Xiu Mei Chen, pro se, New York, New
                       York.

FOR RESPONDENT:        Tony West, Assistant Attorney
                       General, Richard M. Evans, Assistant
                       Director, Kevin J. Conway, Attorney,
                       Office of Immigration Litigation,
                       United States Department of Justice,
                       Washington, D.C.

    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.

    Petitioners, Xiu Mei Chen and Ji Yan Xiao, 2 both

natives and citizens of China, seek review of the September

30, 2008 order of the BIA, affirming the January 21, 2005

decision of Immigration Judge (“IJ”) Adam Opaciuch, denying

their application for asylum, withholding of removal, and

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

Xiu Mei Chen and Ji Yan Xiao, Nos. A097 478 705/706 (BIA

Sept. 30, 2008), aff’g Nos. A097 478 705/706 (Immig. Ct.

N.Y. City Jan. 21, 2005).   We assume the parties’

familiarity with the underlying facts and procedural history



      2
         Xiu Mei Chen’s asylum application included her
  husband, Ji Yan Xiao, as a derivative applicant. The
  BIA’s decision primarily discussed Chen’s eligibility for
  asylum and related relief. Therefore, for the sake of
  clarity, this order refers only to Chen throughout.

                              2
in this case.

    Under the circumstances of this case, we review the

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

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

applicable standards of review are well-established.       See

8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey, 529 F.3d

99, 110 (2d Cir. 2008); Corovic v. Mukasey, 519 F.3d 90, 95

(2d Cir. 2008).

    A.     Past Persecution

    Chen does not contend, nor could she, that mandatory

use of an intrauterine device (“IUD”), by itself,

constituted past persecution.       See Xia Fan Huang v. Holder,

591 F.3d 124, 129-30 (2d Cir. 2010).       Rather, Chen submits

that the agency erred in failing to address her claim that

her removal of her IUD and failure to attend mandatory

gynecological examinations constituted resistance to China’s

coercive population control policy.       In Matter of M-F-W- &

L-G-, 24 I. & N. Dec. 633, 638 (BIA 2008), decided after

Chen’s administrative appeal was dismissed, the BIA

clarified that “other resistance to a coercive population

control program,” 8 U.S.C. § 1101(a)(42), includes such

conduct.   Remand is not warranted here, however, because the



                                3
agency correctly determined that Chen failed to demonstrate

that she suffered any punishment for such resistance, much

less punishment both rising to the level of persecution and

on account of her resistance.       See Matter of M-F-W- & L-G-,

24 I. & N. Dec. at 639-43; see generally Xiao Ji Chen v.

U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir. 2006)

(declining to remand when “we can state with confidence that

the same decision would be made if we were to remand”).        Nor

does the record compel the conclusion that the insertion of

Chen’s IUD was accompanied by “aggravating circumstances”

rising to the level of persecution.       Matter of M-F-W- &

L-G-, 24 I. & N. Dec. at 642.       Accordingly, substantial

evidence supports the agency’s determination that Chen

failed to demonstrate that she suffered past persecution and

was, therefore, not entitled to the presumption of a well-

founded fear of future persecution.       See 8 C.F.R.

§ 1208.13(b)(1).

    B.   Well-Founded Fear of Future Persecution

    Chen argues that the agency erred in concluding that

she failed to establish a well-founded fear of future

persecution based on the birth of her two children -- the

first in China and the second in the United States -- in



                                4
violation of China’s population control policy.   Contrary to

Chen’s argument, the record does not suggest that the agency

ignored any material evidence that she submitted in support

of her application for relief.   See Jian Hui Shao v.

Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (“[W]e do not

demand that the BIA expressly parse or refute on the record

each individual argument or piece of evidence offered by the

petitioner.” (internal quotation marks omitted)); Xiao Ji

Chen, 471 F.3d at 336-37 n.17 (presuming that agency

considered all evidence before it).

    Nor are we persuaded by Chen’s argument that the agency

placed “excessive reliance” on the U.S. Department of

State’s 2007 Country Conditions Profile.   Pet’r’s Br. at 13

(internal quotation marks omitted).   We generally defer to

the agency’s evaluation of documentary evidence, see Xiao Ji

Chen, 471 F.3d at 341-42, and we have observed that U.S.

State Department reports are ordinarily probative, see Tu

Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006); see also

Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 213 (BIA

2010) (“State Department reports ... are highly probative

evidence and are usually the best source of information on

conditions in foreign nations.”).



                             5
    Accordingly, the agency properly denied Chen’s

application for asylum.   Because Chen was unable to

establish the requisite well-founded fear for asylum, she

necessarily failed to meet the higher standard required for

withholding of removal and CAT relief.    See Kyaw Zwar Tun v.

INS, 445 F.3d 554, 567 (2d Cir. 2006); Paul v. Gonzales, 444

F.3d 148, 156 (2d Cir. 2006).

    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




                                6
