10-1015-ag
    Huang v. Holder
                                                                                   BIA
                                                                      Holmes-Simmons, IJ
                                                                           A095 841 435
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         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 3rd day of June, two thousand eleven.

    PRESENT:
             ROBERT A. KATZMANN,
             RICHARD C. WESLEY,
             DENNY CHIN,
                Circuit Judges.
    _____________________________________

    GUANGZU HUANG,
             Petitioner,

                      v.                                   10-1015-ag
                                                           NAC
    UNITED STATES DEPARTMENT OF JUSTICE,
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondents.
    _______________________________________

    FOR PETITIONER:               David A. Bredin, New York, N.Y.

    FOR RESPONDENTS:              Tony West, Assistant Attorney
                                  General; Michelle Gorden Latour,
                                  Assistant Director; Brendan P.
                                  Hogan, 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 DISMISSED in part and DENIED in part.

    Guangzu Huang, a native and citizen of the People’s

Republic of China, seeks review of a February 26, 2010,

order of the BIA, affirming the July 8, 2008 decision of

Immigration Judge (“IJ”) Theresa Holmes-Simmons, which

denied his application for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”).*

In re Guangzu Huang, No. A095 841 435 (B.I.A. Feb. 26,

2010), aff’g No. A095 841 435 (Immig. Ct. N.Y. City July 8,

2008).       We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

    Under the circumstances of this case, we have

considered both the IJ’s and the BIA’s opinions “for the

sake of completeness.”       Zaman v. Mukasey, 

, 237

(2d Cir. 2008) (internal quotation marks omitted).         The

applicable standards of review are well-established.         See 8

U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 

,

513 (2d Cir. 2009).


         *
             The IJ’s decision is incorrectly dated March 3,
  2004.
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I.   Asylum

     In pretermitting Huang’s asylum application, the agency

found that Huang failed to present clear and convincing

evidence that the application was filed within one year of

his arrival in the United States.     See 8 U.S.C.

§ 1158(a)(2)(B).    Huang’s challenges to the agency’s finding

“essentially dispute[] the correctness of [the] IJ’s fact-

finding or the wisdom of his exercise of discretion and

raise[] neither a constitutional claim nor a question of

law.”   Xiao Ji Chen v. U.S. Dep’t of Justice, 

,

329 (2d Cir. 2006).    Therefore, we lack jurisdiction to

review Huang’s arguments with respect to asylum, and dismiss

his petition for review in part.     See id.; see also 8 U.S.C.

§ 1158(a)(3).

II. Withholding of Removal

     Huang argues that the BIA erred in reversing the IJ’s

grant of withholding of removal based on Shi Liang Lin v.

United States Department of Justice, 

, 308 (2d

Cir. 2007), in which we held that the forced abortion of an

applicant’s spouse did not constitute per se persecution of

the applicant.     In Shi Liang Lin, we explained that “our

holding today should not be read to presage the reopening of


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cases of aliens who have already been granted asylum based

on” the forced abortion of a spouse.   

   Huang

asserts that the BIA erred in dismissing his withholding of

removal claim because the IJ initially found that he

suffered past persecution on the basis of his wife’s forced

abortions.   Here, however, the BIA did not reopen Huang’s

removal proceedings to apply the holding of Shi Liang Lin

retroactively.   Rather, because Huang’s removal proceedings

were ongoing due to his appeal of the IJ’s 2006 decision,

the BIA did not err in applying Shi Liang Lin to hold that

the forced abortions of Huang’s wife did not constitute past

persecution of Huang.   See 8 C.F.R. § 1003.1(d)(3)(ii) (BIA

has the authority on appeal to review questions of law de

novo); cf. NLRB v. Coca-Cola Bottling Co., 

, 78

(2d Cir. 1995) (“Appellate courts ordinarily apply the law

in effect at the time of the appellate decision.”).

    Because an applicant’s spouse’s forced abortion is not

per se persecution of the applicant, Huang was required to

show that he was persecuted on account of his “other

resistance” to a coercive family planning policy.     Shi Liang

; 8 U.S.C. § 1101(a)(42).     Huang

argues that he established his eligibility for withholding


                              4
of removal based on the persecution he personally suffered,

and fears upon his return, on account of his “other

resistance” to the family planning policy.     However, the

only harm Huang claimed to have suffered was that family

planning officials pushed him against a wall causing him

“mild pain.”     Accordingly, the agency reasonably found that

Huang failed to establish that he suffered past persecution

on account of his other resistance to the family planning

policy.   See Jian Qiu Liu v. Holder, 

, 822 (2d

Cir. 2011)(per curiam).     Similarly, because Huang did not

provide any alternative basis for his fear of future

persecution, the IJ did not err in finding that he failed to

demonstrate that it was more likely than not that he would

suffer persecution, particularly in light of his testimony

that the officials never came back to look for him and no

warrant was issued for his arrest.     See Paul v. Gonzales,

, 156 (2d Cir. 2006) (holding that withholding

of removal claims require “objective evidence of future

persecution”).     Accordingly, the agency did not err in

denying Huang withholding of removal.




                                5
III.       CAT Relief

       Contrary to Huang’s argument that the agency failed to

analyze his CAT claim separately, to the extent his

application for CAT protection was predicated on the same

facts as his withholding claim, the agency reasonably denied

Huang CAT relief on the same grounds it denied his

withholding claim.      See Xue Hong Yang v. U.S. Dep’t of

Justice, 

, 523 (2d Cir. 2005).      Although Huang

now argues that he fears torture based on his illegal

departure from China, he did not raise this claim before the

BIA, nor does he point to any evidence in the record in

support of his fear of torture based on his illegal

departure.    See Mu Xiang Lin v. U.S. Dep’t of Justice, 

, 160 (holding that the BIA did not err in denying a

petitioner’s CAT claim based on her illegal departure

because she offered no “particularized evidence”).      Huang’s

assertion on appeal that he fears torture due to the

“assistance and connection that he had with political

student groups” is not supported in any way by the record.

Finally, although Huang challenges the veracity of a 1998

State Department Country Conditions Report included in the

record, because, as the Government argues, he failed to

exhaust these arguments before the BIA, we decline to
                                 6
address them in the first instance.     See Lin Zhong v. U.S.

Dep’t of Justice, 

, 122 (2d Cir. 2007).

    For the foregoing reasons, the petition for review is

DISMISSED in part and DENIED in part.    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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