Jinhui Dong v. Holder ( 2012 )

10-2858-ag
Dong v. Holder
BIA
Videla, IJ
A099 687 201
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
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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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 16th day of March, two thousand twelve.
PRESENT:
GUIDO CALABRESI,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges.
_________________________________________
JINHUI DONG, AKA JIN HUI DONG,
Petitioner,
v. 10-2858-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Gary J. Yerman, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Richard M. Evans, Assistant Director;
Andrew M. Oliveira, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
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.
Petitioner Jinhui Dong, a native and citizen of the
People’s Republic of China, seeks review of a June 21, 2010,
decision of the BIA affirming the July 9, 2008, decision of an
Immigration Judge (“IJ”) denying his applications for asylum,
withholding of removal and relief under the Convention Against
Torture (“CAT”). In re Jinhui Dong, No. A099 687 201 (B.I.A.
June 21, 2010), aff’g No. A099 687 201 (Immig. Ct. N.Y. City
July 9, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
Under the circumstances of this case, we have considered
the IJ’s decision as modified by the BIA decision. See Xue
Yong Hang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
2005). The applicable standards of review are well-
established. 8 U.S.C. § 1252(b)(4)(B); Aliyev v. Mukasey, 549
F.3d 111, 115 (2d Cir. 2008).
Here, substantial evidence supports the agency’s
conclusion that Dong was not entitled to asylum or withholding
because he failed to demonstrate either that he had been
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persecuted, or that he had a well-founded fear of persecution,
under China’s coercive family planning policy. The fact that
Dong’s wife was forced to undergo an abortion is not
sufficient to entitle Dong to asylum or withholding of
removal. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d
296, 313 (2d Cir. 2007). Rather, in order to establish
eligibility for asylum and withholding of removal on this
basis, Dong must demonstrate that he has been, or will be,
persecuted on the basis of other resistance to the coercive
family planning policies. Id.Dong argues that conceiving a child in violation of the
family planning policies constitutes other resistance. He did
not, however, raise this argument to the BIA, where he argued
only that he was entitled to relief on the basis of his wife’s
involuntary abortion. Accordingly, because Dong failed to
raise this issue in his brief to the BIA, and because the
Government has raised that failure to exhaust in its brief to
this Court, we decline to consider Dong’s argument that
impregnating his wife in violation of the family planning
policies constitutes other resistance sufficient to entitle
him to asylum and withholding of removal. See Lin Zhong v.
U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir 2007);
Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004).
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Dong also argues that the fine imposed on his family
after his wife’s abortion constitutes persecution on the basis
of a protected ground. Nothing in the record, however,
compels this conclusion. Rather, Dong’s testimony
demonstrated that the fine was imposed before he fought with
family planning officials, and, thus, was not on account of
Dong’s resistance to the family planning policies, but,
rather, merely because the couple had violated the policies.
See Shi Liang Lin, 494 F.3d at 313. Accordingly, the agency
did not err in finding that Dong failed to demonstrate the
nexus to a protected ground required to establish his
eligibility for asylum and withholding of removal. See
8 U.S.C. § 1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A).
Even assuming Dong’s altercation with authorities was
“other resistance,” the agency reasonably concluded that Dong
had failed to establish that he was persecuted as a result, as
he was neither detained nor physically mistreated. See
Ivanishvilli v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
Cir. 2006) (noting that harm must rise above “mere harassment”
to constitute persecution); Matter of Acosta, 19 I. & N. Dec.
211, 222 (BIA 1985) (defining persecution as a “threat to the
life or freedom of, or the infliction of suffering or harm
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upon, those who differ in a way regarded as offensive”),
overruled, in part, on other grounds, INS v. Cardoza-Fonseca,
480 U.S. 421 (1987). Similarly, Dong failed to establish a
fear of future persecution. Other than his testimony that he
feared arrest on the basis of his confrontation with the
officials, Dong offered no evidence that he would be arrested,
detained or otherwise harmed if returned to China. Absent
“solid support” in the record that his fear is objectively
reasonable, Dong’s claim of future persecution is “speculative
at best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d
Cir. 2005). Therefore, as the agency reasonably found that
Dong failed to demonstrate either past persecution or a well-
founded fear of future persecution, it did not err by denying
his applications for asylum, withholding of removal, and CAT
relief. See 8 C.F.R. § 1208.13(b)(2)(iii); 8 C.F.R.
§ 1208.16(b)(2)(i); see also 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, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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