08-1711-ag (L); 08-1750-ag (Con)
Dong v. Holder
BIA
Morace, IJ
A099 083 367
A099 083 366
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 18 th day of May, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11
12 _________________________________________
13 YAN FANG DONG, YAO DI CHEN,
14 Petitioners,
15
16 v. 08-1711-ag (L);
17 08-1750-ag (Con)
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL, 1
21 Respondent.
22 _________________________________________
23 FOR PETITIONERS: Lee Ratner, Law Offices of Michael
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 Brown, New York, New York.
2
3 FOR RESPONDENT: Michael F. Hertz, Acting Assistant
4 Attorney General; Linda S. Wernery,
5 Assistant Director; Thankful T.
6 Vanderstar, Trial Attorney, Office
7 of Immigration Litigation, United
8 States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED, that the petition for review
14 is DISMISSED in part and DENIED in part.
15 Yao Di Chen and her daughter Yan Fang Dong, natives and
16 citizens of the People’s Republic of China, seek review of
17 the March 20, 2008, orders of the BIA, affirming the March
18 31, 2006, decision of Immigration Judge (“IJ”) Philip
19 Morace, which pretermitted their application for asylum, and
20 denied their application for withholding of removal and
21 relief under the Convention Against Torture (“CAT”). In re
22 Yao Di Chen, No. A099 083 366 (B.I.A. Mar. 20, 2008); In re
23 Yan Fang Dong, No. A099 083 367 (B.I.A. Mar. 20, 2008),
24 aff’g Nos. A099 083 366/367 (Immig. Ct. N.Y. City Mar. 31,
25 2006). We assume the parties’ familiarity with the
26 underlying facts and procedural history in this case.
27
2
1 A. Asylum
2 As an initial matter, we lack jurisdiction to review
3 the IJ’s decision insofar as it pretermitted Petitioners’
4 untimely asylum application because they do not present a
5 constitutional claim or question of law with respect to that
6 finding. See 8 U.S.C. § 1158(a)(3); Gui Yin Liu v. INS, 508
7 F.3d 716, 720-21 (2d Cir. 2007). Accordingly, we dismiss
8 the petition for review to this extent. We may, however,
9 review the agency’s denial of Petitioner Chen’s applications
10 for withholding of removal and CAT relief. 2 See Gui Yin
11 Liu, 508 F.3d at 721.
12 B. Withholding of Removal and CAT
13 Under the circumstances of this case, we consider both
14 the IJ’s and the BIA’s opinions “for the sake of
15 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
16 2008) (quotation marks omitted). The applicable standards
2
Although the BIA issued two decisions, addressing
Chen and Dong’s application for relief individually, Chen
was the lead applicant, while Dong was the derivative
beneficiary included in Chen’s asylum application. A
derivative applicant is entitled to asylum if the lead is
granted that relief. See 8 U.S.C. § 1158(b)(3)(A); 8 C.F.R.
§ 1208.21. But there is no derivative benefit that attaches
to a grant of withholding or CAT relief. See Wu Zheng Huang
v. INS, 436 F.3d 89, 100-01 (2d Cir. 2006). Therefore, Chen
is referred to as Petitioner for purposes of this Order.
3
1 of review are well-established. See Bah v. Mukasey, 529
2 F.3d 99, 110 (2d Cir. 2008).
3 Petitioner argues that she established her eligibility
4 for relief based on the past persecution she suffered for
5 violating the Chinese family planning policy. Although the
6 IJ did not specifically mention the conditions Petitioner
7 faced in detention, he acknowledged that detention in his
8 summary of the facts of the case. See Xiao Ji Chen v. U.S.
9 Dep’t of Justice, 315, 338 n.17 (2d Cir. 2006) (the IJ is
10 presumed to have considered all the evidence unless the
11 record “compellingly suggests otherwise”). Nor do we find
12 error in the IJ’s determination that any harm Petitioner
13 endured while in detention did not rise to the level of
14 persecution. See Ivanishvili v. U.S. Dep’t, 433 F.3d 332,
15 341 (2d Cir. 2006). With respect to Petitioner’s argument
16 that she suffered past persecution based on her forced IUD
17 insertion and mandatory gynecological exams, because she
18 does not allege that these procedures were accompanied by
19 any “aggravating circumstances,” the IJ did not err in
20 finding that they did not constitute persecution. See Xia
21 Fan Huang v. Holder, 591 F.3d 124, 128-30 (2d Cir. 2010).
22 Petitioner also argues that her case merits remand
4
1 because this Court’s intervening decision in Jian Hui Shao
2 v. Mukasey, 546 F.3d 138 (2d Cir. 2008), clarified the
3 requirements of a claim based on a fear of sterilization.
4 But as the Government counters, the three-step analysis we
5 upheld in Jian Hui Shao, 546 F.3d at 170, was set out in the
6 BIA’s precedential decision, Matter of J-H-S-, 24 I. & N.
7 Dec. 196, 198-201 (BIA 2007), a decision issued before
8 Petitioner filed her appeal to the BIA. Accordingly, she
9 was on notice that to prevail, she was required to make the
10 showing described in Matter of J-H-S-. Moreover, as the
11 Government argues, Petitioner does not otherwise challenge
12 the agency’s determination that she did not show that she
13 would more likely than not face persecution if returned to
14 China, and has thus abandoned any such argument. See Shunfu
15 Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). Finally,
16 Petitioner does not challenge the agency’s denial of her CAT
17 claim.
18 For the foregoing reasons, the petition for review is
19 DISMISSED in part and DENIED in part. As we have completed
20 our review, any stay of removal that the Court previously
21 granted in this petition is VACATED, and any pending motion
22 for a stay of removal in this petition is DISMISSED as moot.
23 Any pending request for oral argument in this petition is
5
1 DENIED in accordance with Federal Rule of Appellate
2 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
6