10-703-ag
Zheng v. Holder
BIA
Schoppert, IJ
A099 930 632
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 9th day of February, two thousand eleven.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
_____________________________________
DONG BIAO ZHENG,
Petitioner,
v. 10-703-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Chunyu Jean Wang, Flushing,
New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Russell J. E. Verby, Senior
Litigation Counsel; Kristin A.
Moresi, 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.
Dong Biao Zheng, a native and citizen of the People’s
Republic of China, seeks review of a February 4, 2010 order of
the BIA, summarily affirming the June 24, 2008 decision of
Immigration Judge (“IJ”) Douglas Schoppert, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Dong Biao
Zheng, No. A099 930 632 (B.I.A. Feb. 4, 2010), aff’g No. A099
930 632 (Immig. Ct. N.Y. City June 24, 2008). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.
Under the circumstances of this case, we review the IJ’s
decision as the final agency determination. See Shunfu Li v.
Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The applicable
standards of review are well-established. See Salimatou Bah
v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); Manzur v. U.S.
Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
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1. Asylum and Withholding of Removal
The IJ correctly determined that Zheng was not per se
eligible for relief based on his wife’s forced abortion. See
Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309 (2d
Cir. 2007); In re J-S-, 24 I. & N. Dec. 520 (BIA 2008).1
Further, substantial evidence supports the IJ’s conclusion
that Zheng failed to demonstrate past persecution on account
of “other resistance to a coercive population control
program.” 8 U.S.C. § 1101(a)(42); Shi Liang Lin, 494 F.3d at
308-10. Even assuming, arguendo, that Zheng’s attempted
interference with his wife’s involuntary insertion of an
intrauterine device (“IUD”) qualifies as “other resistance,”
the only harm he alleges is that family planning officials
grabbed his collar, pointed to his forehead, and threatened
him with arrest and sterilization if he fathered a second
child. The IJ did not err in determining that unfulfilled
threats are insufficient to support a finding of past
1
To the extent Zheng contends that Shi Liang Lin was
wrongly decided, we decline to entertain this argument.
See Mendez v. Holder, 566 F.3d 316, 322 (2d Cir. 2009)
(“A prior decision of a panel of this court binds all
subsequent panels absent a change in law by higher
authority or by way of an in banc proceeding.” (internal
quotation marks omitted)).
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persecution. See Gui Ci Pan v. U.S. Attorney General, 449
F.3d 408, 412-13 (2d Cir. 2006); Guan Shan Liao v. U.S. Dep’t
of Justice, 293 F.3d 61, 70 (2d Cir. 2002). Moreover, because
Zheng identified no alternative basis for likely future
persecution if returned to China, the IJ reasonably concluded
that Zheng failed to demonstrate a well-founded fear of
persecution, particularly in light of the fact that, following
his wife’s forced abortion, Zheng remained in China for five
years without incident. See Jian Xing Huang v. INS, 421 F.3d
125, 128-29 (2d Cir. 2005); Ramsameachire v. Ashcroft, 357
F.3d 169, 178 (2d Cir. 2004).
Zheng does not challenge on appeal the denial of his
withholding of removal claim and, therefore, this claim is
waived. See Shunfu Li v. Mukasey, 529 F.3d at 146; Yueqing
Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005). In
any event, because the withholding of removal analysis
overlaps factually with the asylum analysis, but involves a
higher burden of proof, Zheng’s failure to establish his
entitlement to asylum also defeats his withholding of removal
claim. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006); Ramsameachire v. Ashcroft, 357 F.3d at 178.
2. Due Process and Equal Protection Claims
4
Zheng submits that he was denied due process because (1)
the IJ failed to analyze separately the record evidence
supporting his claim for CAT relief; (2) he was denied an
opportunity to re-frame his case in light of the decisions in
Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, and In
re J-S-, 24 I. & N. Dec. 520; and (3) the IJ compared his case
to an unrelated one. Zheng further submits that § 601(a) of
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”), as interpreted in Shi Liang Lin and In
re J-S-, violates his right to equal protection because it
discriminates against men.
Although the BIA does not have jurisdiction to adjudicate
constitutional issues, see, e.g., United States v.
Gonzalez-Roque, 301 F.3d 39, 47-48 (2d Cir. 2002), such claims
must nevertheless be administratively exhausted when the BIA
can adjudicate underlying issues concerning fairness of
process and statutory interpretation, see Theodoropoulos v.
INS, 358 F.3d 162, 172-73 (2d Cir. 2004). Because Zheng
failed to raise his constitutional claims in his counseled
brief to the BIA, we decline to consider these unexhausted
arguments in the first instance. See 8 U.S.C. § 1252(d)(1);
Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1,
122-23 (2d Cir. 2007) (holding that while administrative issue
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exhaustion is not jurisdictional, it is in this court’s
discretion whether to review an issue not presented to the
BIA); see also Steevenez v. Gonzales, 476 F.3d 114, 117 (2d
Cir. 2007); Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004).
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 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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