Xiang Chun Fong v. Holder , 429 F. App'x 50 ( 2011 )

10-1637-ag
Fong v. Holder
BIA
Rohan, IJ
A099 025 378
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19th day of July, two thousand eleven.
5
6 PRESENT:
7 ROBERT D. SACK,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 XIANG CHUN FONG, ALSO KNOWN AS, XIANG
14 CHUN FANG, ALSO KNOWN AS XIANGCHUN
15 FANG,
16 Petitioner,
17
18 v. 10-1637-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONER: Dehai Zhang, Flushing, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Michelle Gorden Latour,
29 Assistant Director; Tracie N. Jones,
30 Trial Attorney, Office of
31 Immigration Litigation, Civil
32 Division, United States Department
33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Petitioner Xiang Chun Fong, a native and citizen of the
6 People’s Republic of China, seeks review of an April 6,
7 2010, order of the BIA affirming the May 2, 2008, decision
8 of Immigration Judge (“IJ”) Patricia Rohan, denying Fong’s
9 applications for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Xiang
11 Chun Fong No. A099 025 378 (B.I.A. Apr. 6, 2010), aff’g No.
12 A099 025 378 (Immig. Ct. N.Y. City May 2, 2008). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history of the case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
20 510, 513 (2d Cir. 2009).
21 As an initial matter, the BIA’s application of Shi
22 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d
23 Cir. 2007) (en banc), and Matter of J-S-, 24 I.&.N. Dec. 520
2
1 (A.G. 2008), was correct because the BIA was bound to apply
2 the law in effect at the time it entered its decision. See
3 8 C.F.R. § 1003.1(d)(3)(ii); see also NLRB v. Coca-Cola
4 Bottling Co., 55 F.3d 74, 78 (2d Cir. 1995) (“Appellate
5 courts ordinarily apply the law in effect at the time of the
6 appellate decision”).
7 Under Shi Liang Lin, Fong was ineligible for relief
8 based on harm suffered by his wife and instead could qualify
9 for asylum only if he established that he was persecuted for
10 his resistance to the coercive family planning policy, or
11 had a well-founded fear that he would be subject to
12 persecution for such resistance. See Shi Liang Lin, 494
13 F.3d at 301, 309-10. Fong’s claim that he engaged in “other
14 resistance” to China’s family planning policy is unexhausted
15 because he did not raise that argument before the BIA. See
16 Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (providing
17 that, in addition to the statutory requirement that
18 petitioners exhaust the categories of relief they seek, 8
19 U.S.C. § 1252(d)(1), petitioners must also raise to the BIA
20 the specific issues he or she later raises in this Court);
21 see also Steevenez v. Gonzales, 476 F.3d 114, 117-118 (2d
22 Cir. 2007) (stating that, in determining which arguments
23 constitute “issues,” which must be exhausted, and which
3
1 constitute “subsidiary arguments,” and which do not, the
2 Court will examine whether an unexhausted argument
3 “constitutes a ground, in and of itself, on which an IJ's
4 denial of [relief] may be based”).
5 Moreover, even assuming that Fong engaged in other
6 resistance, substantial evidence supports the agency’s
7 determination that Fong did not establish that he suffered
8 past persecution based on his emotional suffering stemming
9 from the harm to his wife or the imposition of a 3,000 yuan
10 fine. See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d
11 61, 70 (2d Cir. 2002) (finding that the agency reasonably
12 concluded that the petitioner failed to demonstrate economic
13 persecution because he did not produce evidence of his
14 income in China, his net worth at the time of the fines, or
15 any other facts that would make it possible to evaluate his
16 personal financial circumstances in relation to the fines
17 imposed by the government); see also Shi Liang Lin, 394 F.3d
18 at 309 (“We do not deny that an individual whose spouse
19 undergoes, or is threatened with, a forced abortion or
20 involuntary sterilization may suffer a profound emotional
21 loss as a partner and a potential parent. But such a loss
22 does not change the requirement that we must follow the
23 ‘ordinary meaning’ of the language chosen by Congress,
4
1 according to which an individual does not automatically
2 qualify for ‘refugee’ status on account of a coercive
3 procedure performed on someone else.”).
4 Because Fong failed to establish past persecution, he
5 was not entitled to a presumption of future persecution. See
6 8 C.F.R. § 1208.13(b)(1). The agency reasonably concluded
7 that Fong failed to separately establish a well-founded fear
8 of future persecution. Fong’s only basis for that fear was
9 his desire to have more children. Moreover, he testified
10 that his wife had not suffered any harm since his departure
11 from China. See Jian Xing Huang v. INS, 421 F.3d 125, 129
12 (2d Cir. 2005) (holding that, absent solid support in the
13 record for the petitioner’s assertion that he would be
14 subjected to persecution, his fear was “speculative at
15 best”); see also Melgar de Torres v. Reno, 191 F.3d 307, 313
16 (2d Cir. 1999) (finding that where asylum applicant’s mother
17 and daughters continued to live in petitioner’s native
18 country, claim of well-founded fear was diminished).
19 Finally, because Fong has not raised before this Court
20 any challenge to the agency’s denial of withholding of
21 removal or CAT relief, we decline to address those forms of
22 relief. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n.6 (2d
23 Cir. 2007).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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