Filed: Jul. 17, 2013
Latest Update: Feb. 12, 2020
Summary: 12-1828 Dong v. Holder BIA Elstein, IJ A094 816 971 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 NOT
Summary: 12-1828 Dong v. Holder BIA Elstein, IJ A094 816 971 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 NOTA..
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12-1828
Dong v. Holder
BIA
Elstein, IJ
A094 816 971
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of July, two thousand thirteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _______________________________________
12
13 ZHI JIAN DONG,
14 Petitioner,
15
16 v. 12-1828
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; John S. Hogan,
27 Senior Litigation Counsel; Michael
28 C. Heyse, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Zhi Jian Dong, a native and citizen of the People’s
6 Republic of China, seeks review of an April 13, 2012,
7 decision of the BIA affirming the December 14, 2009,
8 decision of Immigration Judge (“IJ”) Annette S. Elstein,
9 denying his application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Zhi Jian Dong, No. A094 816 971 (B.I.A. Apr. 13, 2012),
12 aff’g No. A094 816 971 (Immig. Ct. N.Y. City Dec. 14, 2009).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 We have reviewed both the IJ’s and BIA’s decisions “for
16 the sake of completeness.” See Zaman v. Mukasey, 514 F.3d
17 233, 237 (2d Cir. 2008). The applicable standards of review
18 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
19 also Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir.
20 2009).
21 A. BIA’s Standard of Review
22 Contrary to Dong’s contention, our decision in Hui Lin
23 Huang v. Holder,
677 F.3d 130 (2d Cir. 2012), does not
2
1 provide that an IJ errs by failing to explicitly delineate
2 between factual and legal findings, but instead merely
3 suggests that an IJ attempt “to make clear what part of his
4 or her determination is fact-finding and what part
5 represents conclusions of law.” Id. at 137. In this case,
6 the IJ’s decision was clear in this regard, and there is no
7 indication that the BIA applied an incorrect standard of
8 review on appeal. See id.; see also 8 C.F.R.
9 § 1003.1(d)(3).
10 B. Family Planning Claim
11 The agency correctly concluded that Dong was not
12 eligible for asylum solely on the basis of his wife’s forced
13 family planning procedures. See Shi Liang Lin v. U.S. Dep’t
14 of Justice,
494 F.3d 296, 309-310 (2d Cir. 2007).
15 Nevertheless, he could still qualify for asylum or
16 withholding of removal by demonstrating that: (1) he engaged
17 in “other resistance” to the family planning policy; and (2)
18 he suffered harm rising to the level of persecution, or he
19 had a well-founded fear or likelihood of suffering such harm
20 as a direct result of his resistance. See
id. at 313; see
21 also 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.16(b).
22
3
1 The BIA has defined “resistance” in the context of
2 coercive family planning policies to cover “a wide range of
3 circumstances, including expressions of general opposition,
4 attempts to interfere with enforcement of government policy
5 in particular cases, and other overt forms of resistance to
6 the requirements of the family planning law.” Matter of S-
7 L-L-, 24 I. & N. Dec. 1, 10 (B.I.A. 2006). In this case,
8 the agency did not err in finding that Dong failed to
9 demonstrate such resistance because impregnating his wife,
10 on its own, did not constitute other resistance, see Shi
11 Liang Lin, 494 F.3d at 313 (citation omitted), and other
12 than that act, Dong did not assert any acts of opposition in
13 which family planning officials were aware of his
14 involvement, Matter of S-L-L-, 24 I. & N. Dec. at 10.
15 Even assuming that Dong established “resistance,” the
16 BIA did not err in finding that he failed to allege harm
17 amounting to persecution on account of that resistance. See
18
id. Indeed, contrary to Dong’s assertion here, he did not
19 demonstrate that he suffered economic persecution because he
20 failed to provide any evidence establishing that the fines
21 imposed caused him “severe economic disadvantage.” Matter
22 of T-Z-, 24 I. & N. Dec. 163, 170-75 (BIA 2007); see also
4
1 Guan Shan Liao v. U.S. Dep’t. of Justice, 293 F.3d 61, 70
2 (2d Cir. 2002). Thus, the agency reasonably concluded that
3 Dong failed to establish that he suffered any independent,
4 personal persecution qualifying him for relief. See Shi
5 Liang
Lin, 494 F.3d at 309.
6 Additionally, the agency did not err in concluding that
7 Dong failed to demonstrate that his fear of future
8 persecution on account of his family’s outstanding family
9 planning fine was objectively reasonable because he admitted
10 that, despite failing to pay the fine during repeated visits
11 by authorities, he remained unharmed during those visits,
12 and that his wife continued live unharmed in China after his
13 departure. See Melgar de Torres v. Reno,
191 F.3d 307, 313
14 (2d Cir. 1999). Accordingly, because the agency did not err
15 in finding that Dong failed to demonstrate either past
16 persecution or a well-founded fear of persecution, it
17 reasonably denied him asylum, withholding of removal, and
18 CAT relief insofar as those claims were based on the same
19 factual predicate. See Paul v. Gonzales,
444 F.3d 148, 156
20 (2d Cir. 2006).
21 C. Illegal Departure Claim
22 Contrary to Dong’s contention, he did not establish his
23 eligibility for relief based on his alleged illegal
5
1 departure from China. First, as the IJ noted, he did not
2 establish that he departed China illegally as he testified
3 that he left that country using his own passport. Moreover,
4 even if his departure was illegal, “the possibility that the
5 applicant may be subjected to criminal prosecution and
6 perhaps severe punishment as a result of his illegal
7 departure from [his home country] does not demonstrate a
8 likelihood of persecution under the Act,” Matter of Sibrun,
9 18 I. & N. Dec. 354, 359 (B.I.A. 1983); see also Saleh v.
10 U.S. Dep't of Justice, 962 F.2d 234, 239 (2d Cir. 1992)
11 (“punishment for violation of a generally applicable
12 criminal law is not persecution”), and Dong does not cite
13 any record evidence demonstrating that authorities would be
14 motivated to arrest or punish him based on his purported
15 illegal departure for any reason other than law enforcement.
16 Additionally, an applicant is not “entitled to CAT
17 protection based solely on the fact that []he is part of the
18 large class of persons who have illegally departed China,”
19 Mu Xiang Lin v. U.S. Dep’t of Justice,
432 F.3d 156, 159-60
20 (2d Cir. 2005); see also Mu-Xing Wang v. Ashcroft,
320 F.3d
21 130, 143-44 (2d Cir. 2003), and Dong failed to establish
22 that individuals similarly situated to him have suffered
23 torture upon removal to China. Accordingly, the record does
6
1 not compel the conclusion that Dong established his
2 eligibility for relief based on his illegal departure claim.
3 See Saleh, 962 F.2d at 239; see also Mu Xiang Lin,
432 F.3d
4 at 159-60.
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
7
