XIAO WANG ZHOU, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 499 F. App'x 51

SUMMARY ORDER Petitioner Xiao Wang Zhou, a native and citizen of China, seeks review of a August 16, 2011, decision of the BIA affirming the July 29, 2009, decision of an Immigration Judge (“IJ”) denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Wang Zhou-Xiao, No. [ AXXX XXX XXX ] (B.I.A. Aug. 16, 2011), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City July 29, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of this case. The applicable standards of review are well established.

See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008) (per curiam); Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). Because Zhou has not challenged the agency’s denial of CAT relief, we address only the agency’s denial of asylum and withholding of removal.

Furthermore, the Government challenges Zhou’s failure to exhaust his argument that he demonstrated other resistance because his wife had an intrauterine device (“IUD”) forcibly inserted in October 2000, and he and his wife knowingly defied China’s family planning policy by having the IUD removed and attempting to have a second child. We therefore decline to consider the argument. Cf. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 118-20 (2d Cir.2007) (noting that the issue exhaustion requirement, though not jurisdictional, is “mandatory” where raised by the Government).

As to the merits of Zhou’s asylum claim, the agency reasonably determined that Zhou failed to establish past persecution. Zhou asserted that government officials harassed him and threatened to sterilize him unless his wife had an IUD inserted. The agency reasonably found that this mistreatment did not rise to the level of persecution, as Zhou did not assert that he had ever been arrested, detained, physically assaulted, or sterilized, and unfilled threats generally are insufficient to qualify as persecution. See Gui Ci Pan v. U.S.

Attorney Gen., 449 F.3d 408, 412 (2d Cir.2006) (per curiam) (noting that courts have “rejected [persecution] claims involving ‘unfulfilled’ threats”); Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006) (explaining that “persecution does not encompass mere harassment.”).

The agency also reasonably determined that Zhou failed to establish a well-founded fear of future persecution because the Chinese officials’ motivation for the threats and harassment — requiring his wife to have an IUD in order to comply with the family planning policy — no longer exists, as his wife agreed to have an IUD in order to enroll their son in school. Zhou’s assertion that he faces future persecution due to his past actions to avoid the family planning policy is belied by the fact that his wife has faced no reprisals for her actions to avoid the same policy. Melgar de Torres v.

Reno, 191 F.3d 307, 313 (2d Cir.1999) (finding that where asylum applicant’s mother and daughters continued to live in petitioner’s native country, petitioner’s claim of well-founded fear was diminished). Moreover, as the BIA determined, the 2007 State Department Country Report for China does not show that authorities use measures amounting to persecution to enforce the family planning policy in Zhou’s home province of Fujian, and Zhou has not challenged that conclusion. See Tu Lin v.

Gonzales, 446 F.3d 395, 400 (2d Cir.2006) (explaining that State Department country profiles are “probative,” but cautioning that such reports “do not automatically discredit contrary evidence presented by the applicant, and are not binding on the immigration court”) (internal quotation marks and alteration omitted).

Because Zhou failed to allege past harm rising to the level of persecution or an objectively reasonably fear of future persecution, as needed to make out an asylum claim, and because the same factual predicate exists for both his asylum claim and his withdrawal claim, he is necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). 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).