Ling Dong v. Holder

11-646-ag
Dong v. Holder
BIA
Mulligan, IJ
A099 657 647
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 11th day of April, two thousand twelve.
PRESENT:
BARRINGTON D. PARKER,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________
LING DONG,
Petitioner,
v. 11-646-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, UNITED STATES
DEPARTMENT OF JUSTICE,
Respondents.
_____________________________________
FOR PETITIONER: Khagendra Gharti-Chhetry, New York,
New York.
FOR RESPONDENTS: Tony West, Assistant Attorney
General; Lyle D. Jentzer, Senior
Litigation Counsel; John M. McAdams,
Jr., Civil Division, 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.
Ling Dong, a native and citizen of the People’s
Republic of China, seeks review of a January 24, 2011, order
of the BIA affirming the January 12, 2009, decision of
Immigration Judge (“IJ”) Thomas J. Mulligan, which denied
her application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Dong, No. A099 657 647 (B.I.A. Jan. 24, 2011), aff’g No.
A099 657 647 (Immig. Ct. N.Y. City Jan. 12, 2009). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed
the decision of the IJ 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-established. See Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009).
As an initial matter, because Dong failed to raise her
argument that she established a pattern or practice of
persecution of Christians or illegal emigrants in her appeal
to the BIA, and because the government has raised this
failure to exhaust in its brief to this Court, we decline to
consider the issue. See Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d 104, 119-20, 124 (2d Cir. 2007); Foster v. INS, 376
F.3d 75, 78 (2d Cir. 2004).
Dong argues that she demonstrated a well-founded fear
of persecution in China on the basis of her Christian faith.
However, the BIA did not err in finding that in the absence
of any evidence showing that the Chinese government was
aware of her conversion to Christianity, Dong did not meet
her burden of showing an objectively reasonable fear of
future persecution. See Hongsheng Leng v. Mukasey, 528 F.3d
135, 143 (2d Cir. 2008). Dong also contends that being
forbidden to practice her religion as she sees fit in and of
itself constitutes persecution. This argument is misplaced,
however, as Dong has shown neither that she would be
forbidden from practicing Christianity nor that the Chinese
government would even become aware of her conversion. Dong
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further argues that she will be persecuted if she returns to
China because she will be sterilized if she has more
children. The agency did not err in finding this claim
speculative. See Jian Xing Huang v. INS, 421 F.3d 125, 128-
29 (2d Cir. 2005).
Lastly, the agency did not err in finding that Dong
failed to meet her burden to establish eligibility for CAT
relief because she did not present any particularized
evidence indicating that the Chinese government tortures
repatriated Chinese who have attempted to illegally
emigrate. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432
F.3d 156, 159-60 (2d Cir. 2005); Mu-Xing Wang v. Ashcroft,
320 F.3d 130, 143-44 (2d Cir. 2003).
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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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