Liming Dong v. Holder

10-1542-ag
Dong v. Holder
BIA
Ferris, IJ
A200 026 025
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 13th day of April, two thousand twelve.
PRESENT:
RALPH K. WINTER,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
LIMING DONG, AKA LI MING DONG,
Petitioner,
v. 10-1542-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Theodore N. Cox, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Thomas B. Fatouros, Senior
Litigation Counsel; Robert Michael
Stalzer, 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 Liming Dong, a native and citizen of the
People’s Republic of China, seeks review of a final removal
order issued by the BIA on March 26, 2010. The BIA’s order
affirmed the August 13, 2008 decision of Immigration Judge
(“IJ”) Noel Ferris, which denied petitioner’s application
for asylum and withholding of removal. See In re Liming
Dong, No. A200 026 025 (B.I.A. Mar. 26, 2010), aff’g No.
A200 026 025 (Immig. Ct. N.Y. City Aug. 13, 2008). We
assume the parties’ familiarity with the underlying facts
and procedural history.
Because the BIA’s brief opinion closely tracks the
reasoning of the IJ’s decision, this Court may consider both
the IJ's and the BIA's opinions "for the sake of
completeness." Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008) (per curiam). The "substantial evidence" standard of
review applies, Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
Cir. 2009), and we uphold the IJ's factual findings if they
are supported by "reasonable, substantial and probative
evidence in the record," Lin Zhong v. U.S. Dep't of Justice,
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480 F.3d 104, 116 (2d Cir. 2007) (internal quotation marks
omitted). However, “we review de novo questions of law and
the BIA's application of law to undisputed fact." Yanqin
Weng, 562 F.3d at 513 (internal quotation marks and brackets
omitted). Finally, in reviewing the decision of the BIA, we
assume, but do not determine, the credibility of Dong’s
testimony. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72
(2d Cir. 2005).
This Court has determined that Section 601(a) of the
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 ("IIRIRA") does not provide that a spouse of someone
who has been forced to undergo an abortion is automatically
eligible for "refugee" status. Shi Liang Lin v. U.S. Dep’t
of Justice, 494 F.3d 296, 310 (2d Cir. 2007). Instead,
“such an individual must turn to the two remaining
categories of § 601(a), which provide protection to
petitioners who demonstrate ‘other resistance to a coercive
population control program’ or ‘a well founded fear that he
or she will be . . . subject to persecution for such . . .
resistance . . . .’" Id. (quoting 8 U.S.C. § 1101(a)(42)).
Because Dong does not challenge the agency's finding that he
failed to establish a well-founded fear of persecution, the
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relevant question is whether Dong established persecution
based on “other resistance.” To make this showing, an
applicant must demonstrate (1) “resistance” to a coercive
family planning policy, which can “cover[] a wide range of
circumstances, including expressions of general opposition,
attempts to interfere with enforcement of government policy
in particular cases, and other overt forms of resistance to
the requirements of the family planning law”; and (2) that
the applicant “has suffered harm amounting to persecution on
account of that resistance.” Id. at 313 (citing In re S-L-
L-, 24 I. & N. Dec. 1, 10 (B.I.A. 2006)).
Dong argues that he resisted the family planning policy
by paying a doctor to have his wife’s IUD removed, helping
his wife hide while she was pregnant, hiding himself, and
refusing to pay a 5,000 RMB fine. However, even assuming
that Dong’s activities constituted “other resistance,” see
Matter of M-F-W- & L-G-, 24 I. & N. Dec. 633, 638 (B.I.A.
2008), Dong failed to show that he suffered harm amounting
to persecution on account of that resistance. See Shi Liang
Lin, 494 F.3d at 313. Dong’s central argument –- that the
psychological harm he suffered as a result of the
involuntary abortion performed on his wife constitutes past
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persecution –- is unavailing. The term "persecution"
contemplates that “harm or suffering must be inflicted upon
an individual in order to punish him for possessing a belief
or characteristic a persecutor seeks to overcome.” Matter
of Acosta, 19 I. & N. Dec. 211, 223 (B.I.A. 1985) overruled
in part on other grounds by Matter of Mogharrabi, 19 I. & N.
Dec. 439, 441 (B.I.A. 1987). Dong presented no evidence
that the family planning officials were even aware of his
alleged resistance to the family planning policy, and thus
did not show that the family planning officials who caused
him emotional distress by performing a forcible abortion on
his wife “were in part motivated by an assumption that his
political views were antithetical to those of the
Government.” In re S-P-, 21 I. & N. Dec. 486, 492, 496
(B.I.A. 1996). Accordingly, the BIA did not err in finding
that Dong failed to demonstrate past persecution on account
of a protected ground. See Tao Jiang v. Gonzales, 500 F.3d
137, 142 (2d Cir. 2007) (requiring evidence that a political
opinion was imputed to family member of victim of forcible
sterilization in order to establish nexus); Mei Fun Wong v.
Holder, 633 F.3d 64, 79 (2d Cir. 2011) (recognizing the
requirement of a nexus between the harm and the applicant’s
“other resistance”).
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Dong also argues that the BIA erred by failing to
consider the evidence of his emotional suffering. This
argument is without merit, as it is clear that the BIA
considered the totality of the evidence, including a
psychologist’s report of Dong’s major depressive disorder,
in rendering its decision. See Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006). Finally,
because Dong did not exhaust his administrative remedies as
to withholding of removal, we lack jurisdiction to review
the denial of this form of relief. See Karaj v. Gonzales,
462 F.3d 113, 119 (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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