         10-2642-ag
         Jiang v. Holder
                                                                                       BIA
                                                                                   Lamb, IJ
                                                                               A094 041 765
                            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 30th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                PETER W. HALL,
 9                DENNY CHIN,
10                    Circuit Judges.
11       _____________________________________
12
13       MING ZHAO JIANG,
14                Petitioner,
15
16                         v.                                   10-2642-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Jan Potemkin, New York, New York.
24
25       FOR RESPONDENTS:              Tony West, Assistant Attorney
26                                     General; Michelle Gorden Latour,
27                                     Assistant Director; Tracie N. Jones,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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       Ming Zhao Jiang, a native and citizen of the People’s

 6   Republic of China, seeks review of a June 7, 2010, order of

 7   the BIA, affirming the June 17, 2008, decision of

 8   Immigration Judge (“IJ”) Elizabeth A. Lamb, which denied his

 9   application for asylum, withholding of removal, and relief

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

11   Zhao Jiang, No. A094 041 765 (B.I.A. June 7, 2010), aff’g

12   No. A094 041 765 (Immig. Ct. N.Y. City June 17, 2008).       We

13   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   the decision of the IJ as supplemented by the BIA.     See Yan

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

18   applicable standards of review are well-established.     See 8

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

20   513 (2d Cir. 2009).

21       Jiang’s asylum claim was based primarily on his wife’s

22   forced abortion.   We have specifically held that a woman’s

23   forced abortion under the Chinese family planning policy

                                   2
 1   does not qualify as per se persecution with respect to her

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

 3   F.3d 296, 309 (2d Cir. 2007).       Accordingly, the agency did

 4   not err in finding that Lin was not eligible for relief on

 5   this basis.   See id.

 6       While a spouse’s forced abortion is not per se

 7   persecution, applicants may base their claims on

 8   “persecution that they themselves have suffered or must

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

10   family planning policy.   See id.; see also 8 U.S.C.

11   § 1101(a)(42).   Jiang argues that he resisted the family

12   planning policy by “assisting” in the removal of his wife’s

13   intra-uterine device (“IUD”).       The BIA has held that a

14   female asylum applicant’s removal of an IUD may constitute

15   other resistance to the Chinese family planning policy.          See

16   Matter of M-F-W-, 24 I. & N. Dec. 633, 638 (B.I.A. 2008),

17   aff’d in part, rev’d in part sub nom. Mei Fun Wong v.

18   Holder, 633 F.3d 64 (2d Cir. 2011).       Here, however, it is

19   unclear whether the removal of Jiang’s wife’s IUD can be

20   deemed “other resistance” on his part.       Through counsel,

21   Jiang argued before the IJ that he resisted the family

22   planning policy because he “decided,” with his wife, to have


                                     3
 1   the IUD removed.    Jiang did not testify to any action he

 2   took to assist in the removal of the IUD.         Instead, he

 3   testified that he personally never encountered the family

 4   planning officials or discussed the family planning policy

 5   with them.    Accordingly, on this record, substantial

 6   evidence supports the agency’s conclusion that Jiang did not

 7   demonstrate that he engaged in “other resistance” to the

 8   family planning policy.       Shi Liang Lin, 494 F.3d at 313.

 9       Moreover, even if Jiang’s assistance in the removal of

10   his wife’s IUD might be characterized as “other resistance,”

11   he was also required to show that he suffered persecution in

12   the past or had a fear of future persecution on account of

13   that resistance.    See id.    However, the BIA did not err in

14   concluding that Jiang’s claimed fear of future persecution

15   was not objectively reasonable, given that he testified that

16   he was not harmed in the past and did not show or allege

17   that he was sought by Chinese officials due to his alleged

18   resistance.    See Cao He Lin v. U.S. Dep’t of Justice, 428

19   F.3d 391, 399 (2d Cir. 2005); Hongsheng Leng v. Mukasey, 528

20   F.3d 135, 143 (2d Cir. 2008).         Accordingly, the agency did

21   not err in denying Jiang asylum, withholding of removal, and

22   CAT relief, as all three claims shared the same factual


                                       4
 1   predicate.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

 2   2006) (withholding of removal); Xue Hong Yang v. U.S. Dep’t

 3   of Justice, 426 F.3d 520, 523 (2d Cir. 2006) (CAT).

 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




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