         09-2698-ag
         Ma v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A094 800 782
                         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 2 nd day of March, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                       Chief Judge,
 9                JOSEPH M. McLAUGHLIN,
10                GERARD E. LYNCH,
11                       Circuit Judges.
12       ______________________________________
13       MING LI MA,
14                Petitioner,
15
16                      v.                                      09-2698-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General, Blair T. O’Connor,
27                                     Assistant Director, John C.
28                                     Cunningham, Senior Litigation
29                                     Counsel, 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    Board of Immigration Appeals (“BIA”) decision, it is hereby

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

4    DENIED.

5        Petitioner Ming Li Ma, a native and citizen of China,

6    seeks review of the June 3, 2009 order of the BIA affirming

7    the August 3, 2007 decision of Immigration Judge (“IJ”) Steven

8    R. Abrams denying his application for asylum, withholding of

9    removal,    and     relief   under   the    Convention      Against     Torture

10   (“CAT”).    In re Ming Li Ma, No. A094 800 782 (B.I.A. June 3,

11   2009), aff’g No. A094 800 782 (Immig. Ct. N.Y. City Aug. 3,

12   2007).    We assume the parties’ familiarity with the underlying

13   facts and procedural history in this case.

14       Under     the    circumstances     of    this   case,    we   review    the

15   decision of the IJ as supplemented by the BIA, see Yan Chen v.

16   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005), and apply the

17   “substantial evidence” standard of review, under which we

18   uphold the agency’s factual findings so                long as they are

19   supported by “reasonable, substantial and probative evidence

20   in the record.”       Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

21   Cir. 2009).

22       The BIA reasonably concluded that, even assuming Ma’s

23   actions    ensuring    that   his    children   were     born     in   separate

                                           2
1    hospitals     and   hiding     with    his      wife    constituted       “other

2    resistance” to the Chinese family planning policy, see Shi

3    Liang Lin v. Gonzales, 494 F.3d 296, 301 (2d Cir. 2007), he

4    failed to demonstrate that the alleged persecution he endured,

5    (i.e., a 20,000 RMB fine) was on account of those actions,

6    rather than simply because of the family’s violation of the

7    one-child policy.       See id. at 312-13.                In his brief, Ma

8    asserts that his actions allowed his wife to give birth to

9    three children, which, in turn, caused the couple to violate

10   the policy and be fined.       However, the BIA reasonably declined

11   to find that Ma was persecuted on account of his efforts to

12   evade   detection,    rather    than       on   account   of     the   violation

13   itself, because he offered no evidence demonstrating that

14   family planning officials were even aware of those actions,

15   let alone that he was fined because of them.                   See id.

16       Because     the   BIA    reasonably         found     that    Ma    did   not

17   establish past persecution, it properly denied his application

18   for asylum, withholding of removal, and CAT relief.                     See Paul

19   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 pending motion

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



                                            3
1    Any pending request for oral argument in this petition is

2    DENIED in accordance with Federal Rule of Appellate Procedure

 3   34(a)(2), and Second Circuit Local Rule 34.1(b).
 4
 5
 6                               FOR THE COURT:
 7                               Catherine O’Hagan Wolfe, Clerk
 8
 9
10




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