10-3799-ag
Zhang v. US DOJ
                                                                                BIA
                                                                         Mulligan, IJ
                                                                        A088 379 705
                   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 4th day of January, two thousand twelve.

PRESENT:
         JON O. NEWMAN,
         ROBERT A. KATZMANN,
         DENNY CHIN,
             Circuit Judges.
_____________________________________

YUN ZHANG,
         Petitioner,

                  v.                                    10-3799-ag
                                                        NAC
UNITED STATES DEPARTMENT OF JUSTICE,
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondents.
_______________________________________
FOR PETITIONER:             David A. Bredin, New York, New York.

FOR RESPONDENTS:            Tony West, Assistant Attorney General;
                            Ernesto H. Molina, Jr., Assistant
                            Director; Tracey N. McDonald, Trial
                            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.

      Yun Zhang, a native and citizen of the People’s Republic

of China, seeks review of an August 25, 2010, order of the

BIA, affirming the March 12, 2008, decision of Immigration

Judge (“IJ”) Thomas J. Mulligan, which denied his application

for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Yun Zhang, No. A088

379 705 (B.I.A. Aug. 25, 2010), aff’g No. A088 379 705 (Immig.

Ct.   N.Y.   City   Mar.   12,   2008).   We   assume   the   parties’

familiarity with the underlying facts and procedural history

in this case.

      Under the circumstances of this case, we have reviewed

the IJ’s decision as the final agency determination.               See

Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).            The


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applicable standards of review are well established.                    See

8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009).

    Zhang’s asylum claim was based entirely on his wife’s

forced   abortion.       At    the    hearing     before    the   IJ,    Zhang

confirmed that his asylum application contained the complete

set of facts concerning his claim and that there was nothing

else he wished to add.             However, we have explained that a

woman’s forced abortion does not qualify as per se persecution

with respect to her spouse.           See Shi Liang Lin v. U.S. Dep’t

of Justice, 494 F.3d 296, 309 (2d Cir. 2007).               Although Zhang

argues that he personally suffered emotional harm due to his

wife’s forced abortion, we have rejected this argument, noting

that the “profound emotional loss as a partner and potential

parent . . . does not change the requirement that we must

follow the ‘ordinary meaning’ of the language chosen by

Congress,    according        to    which    an    individual     does     not

automatically qualify for ‘refugee’ status on account of a

coercive    procedure     performed         on    someone   else.”            Id.

Accordingly, the agency did not err in finding that Zhang was

not eligible for asylum and withholding of removal based on

his wife’s forced abortion.           See id.


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     We note that while a spouse’s forced abortion is not per

se   persecution,      applicants   may    base   their   claims     on

“persecution    that   they   themselves   have   suffered   or    must

suffer” on account of their “other resistance” to a coercive

family planning policy.       See Shi Liang Lin, 494 F.3d at 308-

10; 8 U.S.C. § 1101(a)(42). Remand for further development of

the record is not required, however, because Zhang raises no

“other resistance” claim before this Court, nor did so before

the agency.    See Shu Wen Sun v. BIA, 510 F.3d 377, 381 n.5 (2d

Cir. 2007).

     Similarly, the agency did not err in finding that Zhang

failed to establish eligibility for CAT relief.           Contrary to

Zhang’s argument, the IJ did not err in failing to analyze

Zhang’s eligibility for CAT relief independently, as Zhang did

not raise any independent CAT claim before the IJ.           See Xue

Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (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 DENIED as moot.      Any pending request for oral argument in


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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




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