U. S. DEPARTMENT OF JUSTICE & ATTORNEY GENERAL GONZALEZ, ** Respondents. For Petitioner: Bruno Joseph Bembi, Hempstead, NY., (2nd Cir. 2006)

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER

AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER

COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER

COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN

ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the

Second Circuit, held at the Thurgood Marshall United States

Courthouse, Foley Square, in the City of New York, on the 11th day

of January, two thousand six.

PRESENT:

HON. CHESTER J. STRAUB,

HON. ROBERT D. SACK,

Circuit Judges,

HON. MARK R. KRAVITZ,*

District Judge.

XIAO JUN ZHOU,

Petitioner,

v. No. 03-4829

U.S. DEPARTMENT OF JUSTICE &

ATTORNEY GENERAL GONZALEZ,**

Respondents.

For Petitioner: Bruno Joseph Bembi, Hempstead, NY.

* The Honorable Mark R. Kravitz, of the United States

District Court for the District of Connecticut, sitting by

designation. For Respondent: Emily S. Reisbaum, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, on the brief, Sara L. Shudofsky, Assistant United States Attorney, of counsel), New York, NY.

Petition for review of an order of the Board of Immigration Appeals affirming an Immigration Judge's denial of petitioner's application for asylum and withholding of removal.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the petition be, and it hereby is, DENIED.

Petitioner Xiao Jun Zhou, a citizen of China, petitions this Court for review of an April 17, 2003, order of the Board of Immigration Appeals ("BIA") affirming the February 23, 2003 decision of an Immigration Judge ("IJ"), denying Zhou's application for Asylum under the Immigration and Nationality Act ("INA") § 208(a), 8 U.S.C. § 1158(a) and withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), but granting Zhou's request for relief under the United Nations Convention Against Torture and its implementing regulations. 8 C.F.R § 208.16(c).* The IJ found that Zhou was barred from obtaining asylum under 8 U.S.C. § 1101(a)(42) or withholding of removal under 8 U.S.C. 1231(b)(3)(B)(i), both of which deny relief to anyone who "ordered, incited, assisted, or otherwise participated in the persecution" of any person on account of that person's "race, religion, nationality, membership in a particular social group, or political opinion." The IJ determined that Zhou's testimony was credible but concluded that his actions while serving as a doctor in a military hospital, in which Zhou suffocated, with an intent to kill, a newborn baby ­- despite having been committed on orders from his superiors and despite Zhou's abandonment of the murder upon seeing the baby turn blue ­- constituted "participation in persecution" under the INA, barring relief.

Where the BIA summarily affirms the decision of the IJ, this Court reviews the IJ's decision directly. Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir. 2003). We review the IJ's * The issue of the grant of the request for relief under the Convention is not before us. conclusions of law de novo. Guan Shan Liao v. U.S. Dep't of Justice, 293 F.3d 61, 66 (2d Cir. 2002).

On appeal, Zhou primarily argues that he ought not be barred from relief because to the extent that he participated in persecution, such participation was not voluntary and was done only on orders from his military superiors. This argument is foreclosed by this Court's recent decision in Xie v. INS, --­ F.3d --­-, 2006 WL 23413, 2006 U.S. App. LEXIS 156 (2d Cir. Jan.

5, 2006), where we concluded that the driver of a van used to transport women for forced abortions pursuant to China's family planning policies constituted assistance in persecution even though the petitioner had let one such woman escape when, for the first time, he and his passenger were unaccompanied by an unarmed guard. In response to Xie's argument that his conduct had not been voluntary, we noted that in determining whether someone participated or assisted in persecution for the purposes of the INA, "we look[] not to the voluntariness of the person's actions, but to his behavior as a whole. Where the conduct was active and had direct consequences for the victims, we conclude[] that it was 'assistance in persecution.'" 2006 WL 23413, at *6, 2006 U.S. App. LEXIS 156, at *18-19.

Zhou was present at meetings in which the murder of the baby was discussed, and he accepted his orders to perform the act himself. That he abandoned the murder when the horrifying consequences of his conduct overwhelmed him and that his conduct may not have been the ultimate cause of the baby's death does not change the fact that his initial actions constituted "active" participation in persecution and would have had "direct consequences" for the mother and the child but for the intervening murder of the baby by Zhou's superior.

For the foregoing reasons, the petition for review of the order of the Board of Immigration Appeals is hereby DENIED.

FOR THE COURT: ROSEANN B. MACKECHNIE, Clerk By:

**Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Alberto R. Gonzales is substituted for former Attorney General John Ashcroft as Respondent.

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