394 F. App'x 782

GUIPENG YANG, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 09-4874-ag.

United States Court of Appeals, Second Circuit.

Sept. 30, 2010.

*783Vincent S. Wong, New York, New York, for Petitioner.

Tony West, Assistant Attorney General; James A. Hunolt, Senior Litigation Counsel; Jesse Lloyd Busen, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

PRESENT: GUIDO CALABRESI, JOSÉ A. CABRANES, PETER W. HALL, Circuit Judges.

SUMMARY ORDER

Guipeng Yang, a native and citizen of the People’s Republic of China, seeks review of a October 29, 2009, order of the BIA affirming the January 18, 2008, decision of Immigration Judge (“IJ”) George T. Chew, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Guipeng Yang, No. [ AXXX XXX XXX ] (B.I.A. Oct. 29, 2009), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Jan. 18, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).

The agency reasonably found that the penalties Yang suffered were not severe enough to constitute persecution because he and his wife were still able to provide for their family, although at a lower standard of living, and they were permitted to retain their employment. See In re T-Z-, 24 I. & N. Dec. 163, 170-71 (BIA 2007) (defining persecution as including “the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.”); see also Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 67 (2d Cir.2002) (requiring at least a showing of a “deliberate imposition of a substantial economic disadvantage”). Because Yang did not point to any objective evidence, other than the alleged past persecution, the agency also reasonably determined that Yang did not establish a well-founded fear of future persecution based on his wife’s forced abortion in 2000 and the economic penalties imposed on them. See Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.2005) (holding that a fear is not objectively reasonable if it lacks “solid support” in the record and is merely “speculative at best.”).

Contrary to Yang’s arguments, the record does not indicate that the agency failed to cite legal standards in its decision or that it failed to consider any evidence in the record. See Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008) (recognizing that the Court has rejected the notion that the agency must “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner”); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006) (presuming that the agency “has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise”). Finally, to the extent *784Yang is attempting to add a new basis for relief, his argument that he also fears persecution based on “his imputed political opinion as a Falun Gong practitioner” is unexhausted. Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d Cir.2007) (describing the issue exhaustion requirement as an “affirmative defense subject to waiver”).

Because Yang’s withholding of removal and CAT claims were based on the same factual predicate as his asylum claim, the agency reasonably denied his application for asylum, withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (noting that a withholding claim necessarily fails if the applicant is unable to show the objective likelihood of persecution needed to make out an asylum claim).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the 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).

Guipeng Yang v. Holder
394 F. App'x 782

Case Details

Name
Guipeng Yang v. Holder
Decision Date
Sep 30, 2010
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394 F. App'x 782

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United States

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