         10-3492
         Wu v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A097 519 821


                         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 15th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                JON O. NEWMAN,
10                PIERRE N. LEVAL,
11                     Circuit Judges.
12       _____________________________________
13
14       FEI YUN WU,
15                Petitioner,
16
17                      v.                                      10-3492
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Xin Miao, Flushing, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Jennifer Paisner Williams,
28                                     Senior Litigation Counsel; Colette
         05212012-26
 1                                J. Winston, Attorney; Office of
 2                                Immigration Litigation, United
 3                                States Department of Justice,
 4                                Washington, D.C.

 5           UPON DUE CONSIDERATION of this petition for review of a

 6   decision of the Board of Immigration Appeals (“BIA”), it is

 7   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 8   review is DENIED.

 9           Petitioner Fei Yun Wu seeks review of an August 9,

10   2010, decision of the BIA, affirming the March 2, 2009,

11   decision of Immigration Judge (“IJ”) Alan A. Vomacka,

12   denying his application for asylum, withholding of removal,

13   and relief under the Convention Against Torture (“CAT”).            In

14   re Fei Yun Wu, No. A097 519 821 (B.I.A. Aug. 9, 2010), aff’g

15   No. A097 519 821 (Immig. Ct. N.Y. City Mar. 2, 2009).          We

16   assume the parties’ familiarity with the underlying facts

17   and procedural history of this case.

18           Under the circumstances of this case, we have reviewed

19   the IJ’s decision as modified by the BIA.        See Xue Hong Yang

20   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

21   Therefore, because the BIA assumed Wu’s credibility, we do

22   not consider his challenges to the IJ’s adverse credibility

23   findings.     Id.     The applicable standards of review are well-

24   established.        See Jian Hui Shao v. Mukasey, 546 F.3d 138,

25   157-58 (2d Cir. 2008).

     05212012-26                        2
 1           Wu, a native and citizen of the People’s Republic of

 2   China, sought relief from removal based on his claim that he

 3   fears persecution because he has had more than one child in

 4   the United States, which they contend is in violation of

 5   China’s population control program.      For largely the same

 6   reasons as this Court set forth in Jian Hui Shao, 546 F.3d

 7   138, we find no error in the agency’s decisions.       See id. at

 8   158-72.       While the petitioners in Jian Hui Shao were from

 9   Fujian Province, Wu is from Zhejiang Province.      However, as

10   with the evidence discussed in Jian Hui Shao, the evidence

11   Wu submitted relating to Zhejiang Province is deficient

12   either because it does not discuss forced sterilizations or

13   because it references isolated incidents of persecution of

14   individuals who are not similarly situated.       See id. at 160-

15   61, 171-72.

16           Furthermore, contrary to Wu’s contention, the agency

17   provided a separate analysis of his CAT claim, and did not

18   err in summarily denying that claim insofar as it was based

19   on the same factual predicate as his asylum and withholding

20   of removal claims or insofar as it was based on his

21   purported illegal departure from China.       See Paul v.

22   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (recognizing that

23   withholding of removal and CAT claims necessarily fail if
     05212012-26                       3
 1   the applicant is unable to show the objective likelihood of

 2   persecution needed to make out an asylum claim and the

 3   factual predicate for the claims is the same); see also Mu

 4   Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d

 5   Cir. 2005) (finding that a petitioner is not “entitled to

 6   CAT protection based solely on the fact that she is part of

 7   the large class of persons who have illegally departed

 8   China.”).

 9           For the foregoing reasons, the petition for review is

10   DENIED.       As we have completed our review, Wu’s motion for a

11   stay of removal in connection with this petition is DENIED

12   as moot.       Any pending request for oral argument in this

13   petition is DENIED in accordance with Federal Rule of

14   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

15   34.1(b).

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




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