Xue Mei Dong v. Holder , 353 F. App'x 605 ( 2009 )

SUMMARY ORDER

Xue Mei Dong and Qin Yao Zheng, natives and citizens of the People’s Republic of China, seek review of a June 22, 2007 order of the BIA, affirming the November 7, 2005 decision of Immigration Judge (“IJ”) Joanna Miller Bukszpan, which denied their applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xue Mei Dong, Qin Yao Zheng, No. A078 840 543, A098 582 554 (B.I.A. Jun. 22, 2007), aff'g No. A078 840 543, A098 582 554 (Immig. Ct. N.Y. City Nov. 7, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

When the BIA affirms the IJ’s decision in all respects but one, we review the IJ’s decision as modified by the BIA decision, i.e., “minus the single argument for denying relief that was rejected by the BIA.” Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also 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. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).

Petitioners argue that the BIA erred in concluding that they failed to demonstrate their eligibility for relief from removal based on the birth of their U.S. citizen children. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which petitioners presented and have found no error in its conclusion that such evidence is insufficient to establish an objectively reasonable fear of persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-68 (2d Cir.2008). Moreover, petitioners failed to demonstrate their eligibility for CAT relief based on their illegal departure from China because they are not “entitled to CAT protection based solely on the fact that [they are] part of the large class of persons who have illegally departed China,” Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005), and they failed to provide the particularized evidence necessary to demonstrate them eligibility for such relief, see Pierre v. Gonzales, 502 F.3d 109, 118-19 (2d Cir.2007).

In addition, we do not find that the BIA erred in noting that petitioners’ children have U.S. passports, have been residing in China, and have not suffered any harm in China because, contrary to petitioners’ argument, the BIA did not rely on such facts to find them not credible as to their subjective fear of returning to China. Cf. Uwais v. U.S. Att’y General, 478 F.3d 513, 518-19 (2d Cir.2007) (finding that the BIA erred in relying on petitioner’s child’s trip to Sri Lanka to find petitioner’s claimed fear of returning to Sri Lanka not plausible). Additionally, we need not review the IJ’s discretionary denial of petitioners’ application for asylum because the BIA explicitly declined to review that determination. See Xue Hong Yang, 426 F.3d at 522.

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(b).