         11-3686                                                                                             BIA
         Zhou-Xiao v. Holder                                                                             Ferris, IJ
                                                                                                    A099 523 291


                                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 28th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       Xiao Wang Zhou,*
14                Petitioner,
15
16                                                                             11-3686
17                             v.                                              NAC
18
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _____________________________________
24
25       FOR PETITIONER:                         Edward J. Cuccia, Ferro & Cuccia
26                                               Esq., New York, New York.




                 *
                     The Clerk of Court is directed to amend the official caption as shown above.
 1
 2   FOR RESPONDENT:           Stuart F. Delery, Acting Assistant
 3                             Attorney General; Cindy S. Ferrier,
 4                             Assistant Director; Michele Y.F.
 5                             Sarko, Trial Attorney, Office of
 6                             Immigration Litigation, United
 7                             States Department of Justice,
 8                             Washington, D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

11   Board of Immigration Appeals (“BIA”) decision, it is hereby

12   ORDERED, ADJUDGED, AND DECREED that the petition for review

13   is DENIED.

14       Petitioner Xiao Wang Zhou, a native and citizen of

15   China, seeks review of a August 16, 2011, decision of the

16   BIA affirming the July 29, 2009, decision of an Immigration

17   Judge (“IJ”) denying his application for asylum, withholding

18   of removal, and relief under the Convention Against Torture

19   (“CAT”).     In re Wang Zhou-Xiao, No. A099 523 291 (B.I.A.

20   Aug. 16, 2011), aff’g No. A099 523 291 (Immig. Ct. N.Y. City

21   July 29, 2009).    We assume the parties’ familiarity with the

22   underlying facts and procedural history of this case.

23   The applicable standards of review are well established.

24   See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

25   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam);

26   Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

27       Because Zhou has not challenged the agency’s denial of

28   CAT relief, we address only the agency’s denial of asylum


                                     2
 1   and withholding of removal.   Furthermore, the Government

 2   challenges Zhou’s failure to exhaust his argument that he

 3   demonstrated other resistance because his wife had an

 4   intrauterine device (“IUD”) forcibly inserted in October

 5   2000, and he and his wife knowingly defied China’s family

 6   planning policy by having the IUD removed and attempting to

 7   have a second child.   We therefore decline to consider the

 8   argument.   Cf. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

 9   104, 118-20 (2d Cir. 2007) (noting that the issue exhaustion

10   requirement, though not jurisdictional, is “mandatory” where

11   raised by the Government).

12       As to the merits of Zhou’s asylum claim, the agency

13   reasonably determined that Zhou failed to establish past

14   persecution.   Zhou asserted that government officials

15   harassed him and threatened to sterilize him unless his wife

16   had an IUD inserted.   The agency reasonably found that this

17   mistreatment did not rise to the level of persecution, as

18   Zhou did not assert that he had ever been arrested,

19   detained, physically assaulted, or sterilized, and unfilled

20   threats generally are insufficient to qualify as

21   persecution.   See Gui Ci Pan v. U.S. Attorney Gen., 449 F.3d

22   408, 412 (2d Cir. 2006) (per curiam) (noting that courts

23   have “rejected [persecution] claims involving ‘unfulfilled’

                                   3
 1   threats”); Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d

 2   332, 341 (2d Cir. 2006) (explaining that “persecution does

 3   not encompass mere harassment.”).

 4       The agency also reasonably determined that Zhou failed

 5   to establish a well-founded fear of future persecution

 6   because the Chinese officials’ motivation for the threats

 7   and harassment—requiring his wife to have an IUD in order to

 8   comply with the family planning policy—no longer exists, as

 9   his wife agreed to have an IUD in order to enroll their son

10   in school.   Zhou’s assertion that he faces future

11   persecution due to his past actions to avoid the family

12   planning policy is belied by the fact that his wife has

13   faced no reprisals for her actions to avoid the same policy.

14   Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)

15   (finding that where asylum applicant’s mother and daughters

16   continued to live in petitioner’s native country,

17   petitioner’s claim of well-founded fear was diminished).

18   Moreover, as the BIA determined, the 2007 State Department

19   Country Report for China does not show that authorities use

20   measures amounting to persecution to enforce the family

21   planning policy in Zhou’s home province of Fujian, and Zhou

22   has not challenged that conclusion.   See Tu Lin v. Gonzales,

23   446 F.3d 395, 400 (2d Cir. 2006) (explaining that State

                                   4
 1   Department country profiles are “probative,” but cautioning

 2   that such reports “do not automatically discredit contrary

 3   evidence presented by the applicant, and are not binding on

 4   the immigration court”) (internal quotation marks and

 5   alteration omitted).   Because Zhou failed to allege past

 6   harm rising to the level of persecution or an objectively

 7   reasonably fear of future persecution, as needed to make out

 8   an asylum claim, and because the same factual predicate

 9   exists for both his asylum claim and his withdrawal claim,

10   he is necessarily unable to meet the higher standard

11   required to succeed on a claim for withholding of removal.

12   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

13       For the foregoing reasons, the petition for review is

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

15   that the Court previously granted in this petition is

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

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

18   oral argument in this petition is DENIED in accordance with

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

20   Circuit Local Rule 34.1(b).

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
24



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