Huizhen Dong v. Holder , 497 F. App'x 132 ( 2012 )

11-2399-ag
Huizhen Dong v. Holder
BIA
Nelson, IJ
A076 143 164
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 25 th day of September, two thousand twelve.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
HUIZHEN DONG,
Petitioner,
v. 11-2399-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, Esq., New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Daniel E. Goldman, Senior
Litigation Counsel; Jonathan F.
Potter, 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 Huizhen Dong, a native and citizen of the
People’s Republic of China, seeks review of a May 18, 2011
decision of the BIA affirming the June 3, 2010 decision of
Immigration Judge (“IJ”) Barbara A. Nelson, denying her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Huizhen
Dong, No. A076 143 164 (B.I.A. May 18, 2011), aff’g No. A076
143 164 (Immig. Ct. N.Y.C. June 3, 2010). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
both the decisions of the IJ and BIA “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
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1. Asylum
Dong first challenges the agency’s decision that she
failed to demonstrate that she filed for asylum within one
year of her arrival to the United States. We lack
jurisdiction to review this challenge, see 8 U.S.C.
§ 1158(a)(3), except insofar as it raises constitutional
claims or “questions of law,” id. § 1252(a)(2)(D). Dong’s
argument that (1) her own testimony, (2) her passport stamp,
and (3) her brother’s testimony established her April 2008
arrival are factual challenges that we may not consider.
See Jin Jin Long v. Holder, 620 F.3d 162, 165 n.3 (2d Cir.
2010).
To the extent Dong argues that the BIA erred as a
matter of law in declining to consider a new translation of
her passport stamp, we are not persuaded. The BIA is not
permitted to consider new evidence on appeal, see 8 C.F.R. §
1003.1(d)(3)(iv), and the agency thus did not err by
“reject[ing] th[is] evidence without consideration,” De La
Rosa v. Holder, 598 F.3d 103, 108 n.2 (2d Cir. 2010).
Moreover, to the extent Dong further argues that the IJ
erred as a matter of law in failing to consider the date of
entry alleged by the government on Dong’s initial Notice to
Appear, see Dong Zhong Zheng v. Mukasey, 552 F.3d 277,
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285–86 (2d Cir. 2009), Dong’s failure to exhaust this issue
before the BIA precludes us from reviewing it, see Foster v.
INS, 376 F.3d 75, 77-78 (2d Cir. 2004).
2. Withholding of Removal and CAT
We need not reach any of Dong’s other arguments
regarding the agency’s denial of her asylum claim. However,
insofar as Dong further challenges the agency’s denial of
her withholding of removal and CAT claims, we identify no
error in the agency’s conclusion that Dong failed to
demonstrate a well-founded fear of future persecution, let
alone to meet the higher standards required to prevail on
withholding of removal and CAT claims. See Lecaj v. Holder,
616 F.3d 111, 119-20 (2d Cir. 2010).
The agency did not err in determining that Dong had not
demonstrated a reasonable fear that the Chinese government
would target her for persecution. Although Dong presented
evidence that the leader of her church had suffered
persecution, Dong presented no evidence that any ordinary
members of her church had ever been harmed by the government
in any manner. See Jian Xing Huang v. INS, 421 F.3d 125,
129 (2d Cir. 2005) (stating that fear is not objectively
reasonable if it lacks “solid support” in record and is
merely “speculative at best”). Moreover, while the State
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Department’s 2009 Religious Freedom Report demonstrated that
Chinese authorities sought to limit proselytizing, the same
report also indicated that such policies varied widely by
region. In the absence of any evidence of such policies in
Dong’s native Fujian Province, the agency was not required
to conclude that Dong had demonstrated an objectively
reasonable fear of persecution. See Siewe v. Gonzales, 480
F.3d 160, 167-68 (2d Cir. 2008) (“Where there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” (internal
quotation marks omitted)).
Finally, the agency reasonably concluded that Dong had
not established a “systemic, pervasive, or organized”
pattern of persecution of Christians in China. See Santoso
v. Holder, 580 F.3d 110, 112 n.1 (2d Cir. 2009); Mufied v.
Mukasey, 508 F.3d 88, 91 (2d Cir. 2007).
3. Conclusion
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
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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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