Lin Jian Weng v. Holder ( 2010 )

09-0083-ag
Weng v. Holder
BIA
Weisel, IJ
A029 795 078
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.
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 30 th day of July, two thousand ten.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
LIN JIAN WENG, a.k.a. LIN JIAN FENG,
Petitioner,
v. 09-0083-ag
NAC
ERIC H. HOLDER, Jr., U.S. ATTORNEY
GENERAL, 1
Respondent.
_______________________________________
FOR PETITIONER: David Z. Su, Monterey Park,
California.
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Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Anthony P. Nicastro, Senior
Litigation Counsel, Joanna L.
Watson, Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED in part and DISMISSED in part.
Petitioner Lin Jian Weng, a native and citizen of the
People’s Republic of China, seeks review of a December 10,
2008, order of the BIA affirming the April 4, 2007, decision
of Immigration Judge (“IJ”) Robert Weisel, denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Weng,
No. A029 795 078 (B.I.A. Dec. 10, 2008), aff’g No. A029 795
078 (Immig. Ct. N.Y. City Apr. 4, 2007). We assume the
parties’ familiarity with the underlying facts and
procedural history of the case.
Under the circumstances of this case, we review the
IJ’s decision as modified by the BIA decision. See Xue Hong
Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
2005). The applicable standards of review are well
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established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Because Weng waived any challenge to the IJ’s finding
that he failed to establish past persecution, he was not
entitled to a presumption of a well-founded fear of future
persecution. 8 C.F.R. § 1208.13(b)(1). Absent past
persecution, an applicant may establish eligibility for
asylum by showing that he subjectively fears persecution on
account of an enumerated ground and that his fear is
objectively reasonable. See Ramsameachire v. Ashcroft, 357
F.3d 169, 178 (2d Cir. 2004). The BIA did not err in
finding that Weng failed to establish a well-founded fear of
persecution based on either: (1) his physical altercation
with family planning officials over twenty years ago; or (2)
the birth of his two U.S. citizen children. See Corovic v.
Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).
With regard to Weng’s claim based on his physical
altercation with family planning officials, as the BIA
found, the record is devoid of any evidence indicating that
Chinese officials would seek out petitioner. Weng does not
dispute that finding, waiving any such argument. See
Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7
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(2d Cir. 2005). Thus, we will not disturb the BIA’s
decision in this respect.
Furthermore, the BIA reasonably found that Weng failed
to demonstrate a well-founded fear of persecution based on
the birth of his two U.S. citizen children. As the BIA
observed, the evidence Weng submitted was similar to, but
less extensive than, that addressed in Matter of J-W-S-, 24
I. & N. Dec. 185 (BIA 2007). We have previously reviewed,
and found no error in, the BIA’s analysis in that case.
Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008).
Moreover, contrary to Weng’s argument, the IJ reasonably
discounted Weng’s testimony concerning the alleged forced
sterilization of a “fellow villager.” See id. at 160(holding that BIA reasonably concluded that conclusory
“unattributed ‘reports’” do not, by themselves, demonstrate
reasonable possibility of future persecution).
Accordingly, the record supports the agency’s
determination that Weng was not eligible for asylum.
8 U.S.C. § 1252(b)(4)(B); see Corovic, 519 F.3d at 95. We
lack jurisdiction to consider Weng’s unexhausted challenge
to the IJ’s denial of his request for withholding of removal
and CAT relief and dismiss the petition for review to that
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extent. See 8 U.S.C. § 1252(d)(1).
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. 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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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