Ou-Lin v. Gonzales, (2nd Cir. 2007)

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07-0521-ag

Ou-Lin v. Gonzales

BIA

Hom, IJ

A98-354-182

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

A F T E R JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND

F E D E R A L RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

C I T E S A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

M U S T EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: (SUMMARY ORDER).

A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE

P A P E R IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS

T H E SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

W I T H O U T PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/).

I F NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE

C I T A T I O N MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH

T H E ORDER WAS ENTERED.

A t a stated term of the United States Court of Appeals

f o r the Second Circuit, held at the Daniel Patrick Moynihan

U n i t e d States Courthouse, 500 Pearl Street, in the City of

N e w York, on the 13 t h day of September, two thousand seven.

PRESENT:

H O N . ROBERT D. SACK,

H O N . BARRINGTON D. PARKER,

H O N . DEBRA ANN LIVINGSTON,

C i r c u i t Judges.

Q I U D I OU-LIN,

Petitioner,

v. 07-0521-ag

NAC

A T T O R N E Y GENERAL ALBERTO R. GONZALES,

UNITED STATES DEPARTMENT OF JUSTICE,

Respondent.

F O R PETITIONER: Y e e Ling Poon, Robert Duk-Hwan Kim, New York, New York.

F O R RESPONDENT: P e t e r D. Keisler, Assistant Attorney General, Lisa Arnold, Senior Litigation Counsel, Daniel E. Goldman, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED, that the petition for r e v i e w is DENIED.

P e t i t i o n e r Qiudi Ou-Lin, a native and citizen of the P e o p l e ' s Republic of China, seeks review of a February 2, 2 0 0 7 order of the BIA affirming the June 16, 2005 decision o f Immigration Judge ("IJ") Sandy K. Hom denying his a p p l i c a t i o n s for asylum, withholding of removal, and relief u n d e r the Convention Against Torture ("CAT"). In re Qiudi O u - L i n , No. A98 354 182 (B.I.A. Feb. 2, 2007), aff'g No. A98 3 5 4 182 (Immig. Ct. N.Y. City June 16, 2005). We assume the p a r t i e s ' familiarity with the underlying facts and p r o c e d u r a l history of the case.

W h e r e , as here, the BIA issues an opinion that fully a d o p t s the IJ's decision, this Court reviews the IJ's decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 1 2 4 (2d Cir. 2005). We review the agency's factual findings u n d e r the substantial evidence standard, treating them as " c o n c l u s i v e unless any reasonable adjudicator would be c o m p e l l e d to conclude to the contrary." 8U.S.C.

§ 1252(b)(4)(B).

Ou-Lin, an unmarried young man who has no children and w h o has not alleged any personal contact with Chinese family p l a n n i n g officials in the past, asserts that he has a wellf o u n d e d fear of persecution under the family planning policy. We are not compelled to conclude, contrary to the I J , that he met his burden of proof for asylum or w i t h h o l d i n g of removal. As Ou-Lin acknowledges in his b r i e f , he is not per se eligible for asylum based on his m o t h e r ' s sterilization, see Shao Yan Chen v. U.S. Dep't of J u s t i c e , 417 F.3d 303, 305 (2d Cir. 2005), nor does the fact t h a t his mother was sterilized, by itself, suggest that he-o r his hypothetical future wife--faces a heightened risk of sterilization. Moreover, the IJ reasonably found that OuL i n ' s general fears relating to future enforcement of the f a m i l y planning policy were too speculative to be considered w e l l - f o u n d e d , absent any evidence in the record to suggest t h a t someone in his particular situation was likely to face f o r c e d sterilization or comparable punishment. See Jian X i n g Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005).

Substantial evidence also supports the IJ's denial of O u - L i n ' s CAT claim, given his failure to present evidence t h a t would compel the conclusion that someone in his " p a r t i c u l a r alleged circumstances" was more likely than not t o be tortured, solely because he departed China illegally.

S e e Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003). In any event, Ou-Lin fails to present any argument r e g a r d i n g this claim in his brief, and, thus, has waived it.

Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 ( 2 d Cir. 2005).

F o r the foregoing reasons, the petition for review is DENIED. Having completed our review, any stay of removal t h a t the Court previously granted in this petition is V A C A T E D , and any pending motion for a stay of removal in t h i s petition is DISMISSED as moot. Any pending request for o r a l argument in this petition is DENIED in accordance with F e d e r a l Rule of Appellate Procedure 34(a)(2) and Second C i r c u i t Local Rule 34(d)(1).

F O R THE COURT: Catherine O'Hagan Wolfe, Clerk By: O l i v a M. George, Deputy Clerk

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