         11-1573-ag
         Li v. Holder
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A096 401 249
                         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 25th day of January, two thousand twelve.
 5
 6       PRESENT:
 7                JOSEPH M. MCLAUGHLIN,
 8                DEBRA ANN LIVINGSTON,
 9                GERARD E. LYNCH,
10                    Circuit Judges.
11       _____________________________________
12
13       ZU HAN LI, AKA DICKSON NIKKI
14       WONG,
15                Petitioner,
16
17                      v.                                      11-1573-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Thomas Sun, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Emily Anne Radford,
28                                     Assistant Director; Erica B. Miles,
29                                     Senior Litigation Counsel, Office of
30                                     Immigration Litigation, 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

 4   is DENIED.

 5       Petitioner Zu Han Li, a native and citizen of the

 6   People’s Republic of China, seeks review of a March 25,

 7   2011, order of the BIA, affirming the February 27, 2009,

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

 9   which denied his application for asylum, withholding of

10   removal, and relief under the Convention Against Torture

11   (“CAT”).     In re Li, No. A096 401 249 (B.I.A. Mar. 25, 2011),

12   aff’g No. A096 401 249 (Immig. Ct. N.Y. City Feb. 27, 2009).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and the BIA’s opinions “for the sake of

17   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18   2008) (per curiam).    The applicable standards of review are

19   well-established.     See 8 U.S.C. § 1252(b)(4); Weng v.

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

21       In finding that the harm suffered by Li on account of

22   his own family planning policy violation did not rise to the

23   level of persecution, the agency reasonably relied on Li’s

                                     2
 1   failure to sufficiently demonstrate his inability to pay his

 2   30,000 renminbi (“RMB”) fine.       See Guan Shan Liao v. U.S.

 3   Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002).       Moreover,

 4   although Li claims that he suffered past persecution on the

 5   basis of his fiancée’s forced abortion, a Chinese national’s

 6   forced sterilization does not qualify as per se persecution

 7   with respect to her spouse, and thus does not alone create a

 8   presumption of a well-founded fear of persecution as to that

 9   spouse.   See Shi Liang Lin v. U.S. Dep’t of Justice, 494

10   F.3d 296, 308-09 (2d Cir. 2007); 8 C.F.R. § 1208.13(b)(1).

11   While Li further argues that he personally suffered

12   emotional harm due to his fiancée’s forced abortion, we have

13   previously rejected this argument, noting that the “profound

14   emotional loss as a partner and potential parent . . . .

15   does not change the requirement that we must follow the

16   ‘ordinary meaning’ of the language chosen by Congress,

17   according to which an individual does not automatically

18   qualify for ‘refugee’ status on account of a coercive

19   procedure performed on someone else.”       Lin, 494 F.3d at 309.

20   Accordingly, the agency did not err in finding that Li

21   failed to demonstrate past persecution on account of his own

22   family planning policy violation.


                                     3
 1       Nor did the agency err in finding that Li failed to

 2   show that he resisted China’s family planning laws in

 3   connection with his own family planning policy violation.

 4   See id. at 309-10, 312-13.   “[A]n applicant claiming

 5   persecution for ‘other resistance’ must demonstrate []

 6   ‘resistance’ to a coercive family planning policy, which can

 7   ‘cover[ ] a wide range of circumstances, including

 8   expressions of general opposition, attempts to interfere

 9   with enforcement of government policy in particular cases,

10   and other overt forms of resistance to the requirements of

11   the family planning law.’”   Id. at 313 (quoting In re

12   S-L-L-, 24 I. & N. Dec. 1, 10 (B.I.A. 2006)).      In finding

13   that Li did not demonstrate “other resistance,” the agency

14   reasonably relied on the fact that Li’s hiding of his

15   fiancée at his parents’ house and his failure to pay the

16   30,000 RMB fine were not “‘overt forms of resistance,’ but

17   rather were attempts to avoid the strictures of China’s

18   population control policies.”       In re Li, No. A096 401 249,

19   Slip Op. at 2.   While Li argues that his violation of the

20   family planning policy, alone, constitutes an act of overt

21   resistance, we have consistently found such arguments to be

22   without merit.   See, e.g., id. at 318 (“[T]he conception of


                                     4
 1   a child is no more an expression of political opinion than

 2   birth, death, sleep, or the taking of nourishment.”).

 3       Moreover, in finding that the harm suffered by Li as a

 4   result of his 2001 altercation with family planning

 5   officials did not rise to the level of persecution, the

 6   agency reasonably relied on the fact that he was not

 7   injured, detained, arrested, or served with a summons

 8   following the altercation.   See Ivanishvili v. U.S. Dep’t of

 9   Justice, 433 F.3d 332, 342 (2d Cir. 2006).    Although Li

10   alleged that police threatened to arrest him following the

11   2001 incident, we have previously “rejected [persecution]

12   claims involving ‘unfulfilled threats.’”     Gui Ci Pan v. U.S.

13   Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006).    While Li

14   claimed to suffer persecution based on his siblings’

15   deficient schooling, we have recognized “that applicants can

16   become candidates for asylum relief only based on

17   persecution that they themselves have suffered or must

18   suffer.”   Shi Liang Lin, 494 F.3d at 308.    Under these

19   circumstances, the agency did not err in finding that Li

20   failed to establish past persecution on account of his other

21   resistance to China’s family planning laws.

22       The agency’s finding that Li failed to establish a

23   well-founded fear of future persecution is also supported by
                                   5
 1   substantial evidence.   See Huang v. INS, 421 F.3d 125,

 2   128-29 (2d Cir. 2005) (per curiam) (stating that, absent

 3   solid support in the record that petitioner would be

 4   persecuted under China’s family planning policy, his fear

 5   was “speculative at best”).   In finding that Li failed to

 6   demonstrate a well-founded fear of future persecution, the

 7   agency reasonably relied on the fact that Li was able to

 8   live in Fuzhou City following the 2001 altercation for four

 9   years without incident and returned home a number of times,

10   as well as the fact that he was never arrested or served

11   with a summons.   While Li takes issue with the agency’s

12   inference that he would likely face prosecution for his 2001

13   assault on the government official rather than persecution

14   for his other resistance to the country’s family planning

15   policy, it is not the role of this Court to determine which

16   possible inference is the most plausible.     See Siewe v.

17   Gonzales, 480 F.3d 160, 168 (2d Cir. 2007) (explaining that

18   “support for a contrary inference – even one more plausible

19   or more natural – does not suggest error”).

20       Although Li appears correct in his contention that the

21   agency erred by failing to consider his November 2004

22   summons from the Lianjiang Public Security Bureau, we

23   decline to remand these proceedings on that basis since
                                   6
 1   doing so would be futile.   See Xiao Ji Chen v. U.S. Dep’t of

 2   Justice, 471 F.3d 315, 339 (2d Cir. 2006) (noting that

 3   remand is futile when this Court “can ‘confidently predict’

 4   that the agency would reach the same decision absent the

 5   errors that were made”) (quoting Cao He Lin v. U.S. Dep't of

 6   Justice, 428 F.3d 391, 406 (2d Cir. 2005)).   Even assuming

 7   that the agency erred in failing to consider his summons in

 8   connection with his own violation of the family planning

 9   laws, as the agency reasonably determined, Li failed to

10   demonstrate that he ever engaged in any overt acts of

11   resistance in connection with his family planning violation,

12   and, as a result, is unable to show that any harm he might

13   suffer in connection with the 2004 summons would be on

14   account of a protected ground.    See Shi Liang Lin, 494 F.3d

15   at 318.

16       Because Li was unable to meet his burden for asylum, he

17   necessarily failed to meet the higher burden required to

18   succeed on a claim for withholding of removal.    See Gomez v.

19   INS, 947 F.2d 660, 665 (2d Cir. 1991).   Moreover, although,

20   for the purpose of CAT relief, the feared torture does not

21   require any nexus to a protected ground, see 8 C.F.R.

22   § 1208.18(a), as the IJ reasonably noted, Li did “not

23   allege[] [that] he was ever tortured, or why he would be
                                   7
 1   more likely than not tortured by the Chinese government in

 2   the future.”     Therefore, the agency did not err in denying

 3   Li CAT relief.

 4       For the foregoing reasons, the petition for review is

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

 6   removal that the Court previously granted in this petition

 7   is VACATED, and any pending motion for a stay of removal in

 8   this petition is DISMISSED as moot.     Any pending request for

 9   oral argument in this petition is DENIED in accordance with

10   Federal Rule of Appellate Procedure 34(a)(2), and Second

11   Circuit Local Rule 34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14
15




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