         10-2965-ag
         Yang v. Holder
                                                                                       BIA
                                                                                   Chew, IJ
                                                                               A077 322 698
                           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 23rd day of August, two thousand eleven.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                GERARD E. LYNCH,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _______________________________________
12
13       BO YANG, AKA BUO YANG,
14                Petitioner,
15
16                        v.                                    10-2965-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Gerald Karikari, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Carl H. McIntyre, Jr.,
27                                     Assistant Director; Christina J.
28                                     Martin, Trial Attorney, Office of
29                                     Immigration Litigation, Civil
30                                     Division, United States Department
31                                     of Justice, 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 Bo Yang, a native and citizen of China,

 6   seeks review of a June 24, 2010, order of the BIA affirming

 7   the December 17, 2007, decision of Immigration Judge (“IJ”)

 8   George T. Chew denying his applications for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).     In re Bo Yang, No. A077 322 698

11   (B.I.A. June 24, 2010), aff’g No. A077 322 698 (Immig. Ct.

12   N.Y.C. Dec. 17, 2007).     We assume the parties’ familiarity

13   with the underlying facts and procedural history in this

14   case.

15       Under the circumstances of this case, we review both

16   the BIA’s and the IJ’s decisions.       See Zaman v. Mukasey, 514

17   F.3d 233, 237 (2d Cir. 2008).       The applicable standards of

18   review are well-established.     See 8 U.S.C. § 1252(b)(4)(B);

19   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20       Yang contends that he established his eligibility for

21   asylum and withholding of removal based on his mistreatment

22   following his girlfriend’s abortions under China’s family


                                     2
 1   planning policy and his fear of future persecution due to

 2   the fact that if returned to China he and his girlfriend

 3   will have two children in violation of the policy.

 4       The agency reasonably concluded that any past

 5   mistreatment Zhang suffered did not establish his

 6   eligibility for asylum or withholding of removal as he did

 7   not establish it was on account of a protected ground.     See

 8   Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)

 9   (explaining that an applicant for asylum or withholding of

10   removal must show a nexus between his persecution and a

11   protected ground set forth in the Immigration and

12   Nationality Act); 8 U.S.C. § 1101(a)(42) (providing that a

13   person “who has been persecuted . . . for other resistance

14   to a coercive population control program, shall be deemed to

15   have been persecuted on account of political opinion”).    The

16   agency reasonably concluded that Yang’s impregnation of his

17   girlfriend in violation of the family planning policy,

18   alone, did not establish that he was engaged in “other

19   resistance” to the policy.   See Shi Liang Lin v. U.S. Dep’t

20   of Justice, 494 F.3d 296, 313 (2d Cir. 2007) (en banc)

21   (explaining that individuals whose spouses have become

22   pregnant in violation of the family planning policy have not


                                   3
 1   through that pregnancy demonstrated their own resistance to

 2   China’s coercive population control measures used to enforce

 3   the policy); see also Zhang v. Ashcroft, 395 F.3d 531, 532

 4   (5th Cir. 2004) (“[M]erely impregnating one’s girlfriend is

 5   not alone an act of ‘resistance.’”).       Yang’s contention in

 6   his brief that he impregnated his girlfriend in order to

 7   resist the family planning policy does not compel a contrary

 8   conclusion.   See 8 U.S.C. § 1252(b)(4)(B).

 9       Yang contends that he has a well-founded fear of

10   persecution because, if returned to China and reunited with

11   his girlfriend, they will have two children in violation of

12   the family planning policy.     Yang did not raise this basis

13   for relief before the agency.       Accordingly, we will not

14   address the issue.   See Lin Zhong v. U.S. Dep’t of Justice,

15   480 F.3d 104, 107 n.1, 122 (2d Cir. 2007) (reaffirming that

16   this Court “may consider only those issues that formed the

17   basis for [the BIA’s] decision”).

18       Finally, the agency’s denial of Yang’s application for

19   CAT relief is supported by substantial evidence.       The agency

20   reasonably found that Yang did not establish that he would

21   be tortured based on his past violation of the family

22   planning policy as his girlfriend, who also violated the


                                     4
 1   policy and remained in China, had not been tortured.     See

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

 3   And the agency reasonably concluded that Yang’s contention

 4   that he would be tortured because he left China illegally

 5   did not establish a likelihood of torture as he did not

 6   submit any particularized evidence supporting that claim.

 7   See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156,

 8   157-60 (2d Cir. 2005).

 9       For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition

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

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

14   oral argument in this petition is DENIED in accordance with

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

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19
20




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