         09-2293-ag
         Ye v. Holder
                                                                                       BIA
                                                                                 Brennan, IJ
                                                                               A097 449 578
                         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 29 th day of April, two thousand ten.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                GUIDO CALABRESI,
 9                ROBERT A. KATZMANN,
10                       Circuit Judges.
11       _______________________________________
12
13       GUANG XIN YE,
14                Petitioner,
15
16                      v.                                      09-2293-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23
24       FOR PETITIONER:               John W. Reinhardt, Huntington, N.Y.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; David V. Bernal, Assistant
28                                     Director; Jennifer Paisner Williams,
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 Guang Xin Ye, a native and citizen of the

6    People’s Republic of China, seeks review of a May 4, 2009

7    order of the BIA affirming the November 8, 2007 decision of

8    Immigration Judge (“IJ”) Noel Brennan denying his

9    application for asylum, withholding of removal, and relief

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

11   Xin Ye, No. A097 449 578 (B.I.A. May 4, 2009), aff’g No.

12   A097 449 578 (Immig. Ct. N.Y. City Nov. 8, 2007).     We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, this Court

16   reviews the decision of the IJ as supplemented by the BIA.

17   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

18   The applicable standards of review are well-established.        We

19   review the agency’s factual findings under the substantial

20   evidence standard, upholding them if they are supported by

21   “reasonable, substantial and probative evidence in the

22   record.”     Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.

23   2009) (internal quotation marks omitted).     We review de novo

                                     2
1    questions of law and the agency’s application of law to

2    undisputed fact.     Id.

3        The agency’s finding that Ye failed to establish past

4    persecution on account of any alleged “other resistance” to

5    the family planning policy is supported by the record.        Ye

6    is not automatically eligible for refugee status based on

7    his wife’s forced abortion.     See Shi Liang Lin v. U.S. Dep’t

8    of Justice, 494 F.3d 296, 309–10 (2d Cir. 2007).     Instead,

9    he must demonstrate that he engaged in resistance to a

10   coercive population control program and suffered past

11   persecution or has a well-founded fear of future persecution

12   on account of such resistance.      See id.

13       The agency reasonably found that Ye’s testimony that he

14   was threatened with sterilization failed to establish that

15   he suffered past persecution on account of any such

16   resistance.     See Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d

17   408, 412 (2d Cir. 2006) (noting that “[t]his Court, and

18   others, previously have rejected . . . claims [that]

19   ‘unfulfilled’ threats” constitute persecution).     The agency

20   also reasonably found that any fear Ye had of returning to

21   China, including his fear of the repercussions should he

22   have more children in the future, was too speculative to

23   merit relief.     See Jian Xing Huang v. I.N.S., 421 F.3d 125,

                                     3
1    129 (2d Cir. 2005).   Accordingly, we need not reach Ye’s

2    argument that he resisted the policy because even if he did,

3    he was not persecuted and does not have a well-founded fear

4    of future persecution as a result.     See Xia Fan Huang v.

5    Holder, 591 F.3d 124, 130 (2d Cir. 2010).

6        Because Ye was unable to meet his burden for asylum, he

7    necessarily failed to meet the higher burden required for

8    withholding of removal.   See Paul v. Gonzales, 444 F.3d 148,

9    156 (2d Cir. 2006).   Ye has waived any challenge to the

10   agency’s denial of CAT relief.     See Yueqing Zhang v.

11   Gonzales, 426 F.3d 540, 541 n.1, 545 n.7.

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

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

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

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).
20
21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
24
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