MING ZHU, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 09-5251-ag.United States Court of Appeals, Second Circuit.
December 20, 2010.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.

Richard Tarzia, Belle Mead, NJ, for Petitioner.

Tony West, Assistant Attorney General; Blair T. O’Connor, Assistant Director; Don G. Scroggin, Trial Attorney, Office of Immigration Litigation; U.S. Department of Justice, Washington, D.C., for Respondent.


Ming Zhu, a native and citizen of the People’s Republic of China, seeks review of an November 30, 2009, decision of the BIA affirming the decision of Immigration Judge (“IJ”) Elizabeth A. Lamb, which denied Zhu’s application for asylum, with-holding of removal, and relief under the Convention Against Torture (“CAT”). In re Ming Zhu, No. A097 660 552 (B.I.A. Nov. 30, 2009), aff’g No. A097 660 552 (Immig. Ct. N.Y. City March 25, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we review both the IJ’s and the BIA’s opinions “for the sake of completeness.”Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The applicable standards of review are well-established See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

The agency did not err in finding that Zhu had failed to demonstrate his eligibility for asylum. The agency correctly relied on binding precedent in finding that the alleged forced sterilization of Zhu’s wife did not render Zhu per se
eligible for asylum. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (en banc) (holding that an individual is not per se eligible for asylum based on the forced abortion or sterilization of a spouse or partner because “applicants can become candidates for asylum relief only based on persecution that they themselves have suffered or must suffer”). Similarly, the agency did not err in finding that conceiving a second child with his wife did not constitute an act of “other resistance” to China’s family planning policy so as to render Zhu eligible for asylum See Matter

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of S-L-L-, 24 I. N. Dec. 1 (BIA 2006). Because Zhu failed to demonstrate “other resistance,” we need not reach the issue of the fine; the fine cannot be “persecution” within the meaning of the Act, because it was not imposed on account of Zhu’s “other resistance.” See 8 U.S.C.A. § 1158(b)(1)(B)(i).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).