09-2291-ag
Dong v. Holder
BIA
Hom, IJ
A094 927 297
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 1 st day of June, two thousand ten.
PRESENT:
JON O. NEWMAN,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
_______________________________________
XU HUI DONG,
Petitioner,
v. 09-2291-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Richard Tarzia, Belle Mead, New
Jersey.
FOR RESPONDENT: Tony West, Assistant Attorney General,
Linda Wernery, Assistant Director,
Trish Maskew, Attorney, Office of
Immigration L itigation, Civil
Division, 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 Xu Hui Dong, a native and citizen of China,
seeks review of a May 4, 2009, order of the BIA affirming the
September 19, 2007, decision of Immigration Judge (“IJ”) Sandy
K. Hom denying his application for asylum, withholding of
removal, and relief under the Convention against Torture. In
re Xu Hui Dong, No. A094 927 297 (B.I.A. May 4, 2009), aff’g
No. A094 927 297 (Immig. Ct. N.Y. City Sept. 19, 2007). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.
2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.
2008).
Dong does not contest the agency’s finding that he is not
per se eligible for relief based on his wife’s forced
sterilization. See Shi Liang Lin v. U.S. Dep’t of Justice,
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494 F.3d 296, 309-310 (2d Cir. 2007); Matter of J-S-, 24 I. &
N. Dec. 520 (AG 2008). Rather, Dong argues that he was
eligible for relief because he was “not ... allowed to enjoy
the basic human right of procreating with his wife.” This
argument too is foreclosed by Shi Liang Lin. See 494 F.3d at
309-310 (“We do not deny that an individual whose spouse
undergoes, or is threatened with, a forced abortion or
involuntary sterilization may suffer a profound emotional loss
as a partner and a potential parent. But such a loss does not
change the requirement that we must follow the ‘ordinary
meaning’ of the language chosen by Congress, according to
which an individual does not automatically qualify for
‘refugee’ status on account of a coercive procedure performed
on someone else.”).
Moreover, the BIA reasonably found that Dong failed to
demonstrate that the fine imposed upon him by family planning
officials constituted persecution because, as the BIA noted,
he offered neither testimony nor evidence regarding the fine.
See Matter of T-Z-, 24 I. & N. Dec. 163, 170-75 (BIA 2007);
Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
(holding that “[i]n the absence of solid support in the record
for [an applicant’s] assertion that he will be [persecuted],
his fear is speculative at best”); Guan Shan Liao v. U.S.
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Dep’t of Justice, 293 F.3d 61, 68 (2d Cir. 2002) (finding that
an absence of evidence of applicant’s net worth or other
information necessary to evaluate his financial circumstances,
precluded a finding of economic persecution). Because Dong
established neither past persecution nor a well-founded fear
of future persecution, the agency reasonably denied his
application for asylum. See 8 U.S.C. § 1101(a)(42). Dong
does not challenge the denial of either his application for
withholding of removal or his illegal departure claim.
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 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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