20-3068 Gu v. Garland

BIA Christensen, IJ A208 019 273

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 Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 15th day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 DEBRA ANN LIVINGSTON, 9 Chief Judge, 10 JOHN M. WALKER, JR., 11 ALISON J. NATHAN, 12 Circuit Judges. 13 _____________________________________ 14 15 XIANG GU, 16 Petitioner, 17 18 v. 20-3068 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 26 FOR PETITIONER: John Chang, Esq., New York, NY. 27 28 1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Sabatino F. Leo, 3 Assistant Director; Corey L. 4 Farrell, Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC. 8 9 UPON DUE CONSIDERATION of this petition for review of a

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

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

12 is DENIED.

13 Petitioner Xiang Gu, a native and citizen of the People’s

14 Republic of China, seeks review of a September 4, 2020,

15 decision of the BIA affirming a September 19, 2018, decision

16 of an Immigration Judge (“IJ”) denying asylum, withholding of

17 removal, and relief under the Convention Against Torture

18 (“CAT”). In re Xiang Gu, No. A208-019-273 (B.I.A. Sept. 4,

19 2020), aff’g No. A208-019-273 (Immig. Ct. N.Y. City Sept. 19,

20 2018). We assume the parties’ familiarity with the

21 underlying facts and procedural history.

22 We have reviewed both the IJ’s and the BIA’s opinions.

23 Wangchuck v. Dep’t of Homeland Sec.,

(2d

24 Cir. 2006). The applicable standards of review are well

25 established. See

(b)(4)(B) (“[T]he

26 administrative findings of fact are conclusive unless any

2 1 reasonable adjudicator would be compelled to conclude to the

2 contrary . . . .”); Weng v. Holder,

(2d

3 Cir. 2009) (reviewing factual findings for substantial

4 evidence and questions of law de novo).

5 It is undisputed that Gu is not eligible for asylum

6 solely based on his former wife’s forced abortion in 2012.

7 See Shi Liang Lin v. U.S. Dep’t of Just.,

, 309–

8 10 (2d Cir. 2007) (en banc). Nevertheless, he may still

9 qualify for asylum if (1) he engaged in “resistance” to the

10 family planning policy, and (2) he suffered harm rising to

11 the level of persecution, or he has a well-founded fear of

12 suffering such harm, as a direct result of his resistance.

13

(a)(42); Shi Liang Lin,

. The

14 BIA has defined “resistance” in the context of coercive family

15 planning to “cover[] a wide range of circumstances, including

16 expressions of general opposition, attempts to interfere with

17 enforcement of government policy in particular cases, and

18 other overt forms of resistance to the requirements of the

19 family planning law.” In re S-L-L-,

, 10

20 (B.I.A. 2006); see also Shi Liang Lin,

.

21 Even assuming that Gu was targeted for engaging in

22 resistance to the family planning policy, he failed to

3 1 establish that he suffered harm rising to the level of

2 persecution on account of that resistance because he did not

3 allege that he suffered “severe economic disadvantage” after

4 he was fired or after he closed his businesses due to

5 depression caused by his former wife’s forced abortion. In

6 re T-Z-,

(B.I.A. 2007); see also

7 Guan Shan Liao v. U.S. Dep’t of Just.,

, 70 (2d

8 Cir. 2002) (requiring applicant to show “that he suffered a

9 deliberate imposition of substantial economic disadvantage”

10 (internal quotation marks omitted)).

11 Because Gu did not demonstrate past persecution, he was

12 not entitled to a presumption of a well-founded fear of future

13 persecution. See

(b)(1). The agency also

14 reasonably found that Gu failed to demonstrate an independent

15 well-founded fear of future persecution because he did not

16 assert a fear that anything would happen to him if he returned

17 to China, stating only that he would continue to be

18 disappointed by the government. See

§ 1208.13(b)(2).

19 That finding was dispositive of asylum, withholding of

20 removal, and CAT protection. See Lecaj v. Holder,

111, 119–20 (2d Cir. 2010).

22

4 1 For the foregoing reasons, the petition for review is

2 DENIED. All pending motions and applications are DENIED and

3 stays VACATED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court

5