08-1479-ag
Chen v. Holder
BIA
Hladylowycz, IJ
A72-484-380
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 29 th day of March, two thousand ten.
PRESENT:
ROSEMARY S. POOLER,
ROBERT D. SACK,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
ZHI YONG CHEN, ALSO KNOWN AS CHEN
HAN LIN,
Petitioner,
v. 08-1479-ag
NAC
ERIC H. HOLDER JR., UNITED STATES
ATTORNEY GENERAL, 1
Respondent.
______________________________________
FOR PETITIONER: Waisim M. Cheung, New York, New
York.
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.
FOR RESPONDENT: Gregory G. Katsas, Assistant
Attorney General, Civil Division,
Carl H. McIntyre, Jr., Assistant
Director, Francis W. Fraser, Senior
Litigation Counsel, Office of
Immigration Litigation, United
States Department of Justice, Civil
Division, 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, Zhi Yong Chen, a native and citizen of the
People’s Republic of China, seeks review of a March 4, 2008
order of the BIA dismissing his appeal of the March 18, 2004
decision of Immigration Judge (“IJ”) Roxanne Hladylowycz
denying petitioner’s applications for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Zhi Yong Chen, No. A 72 484 380 (B.I.A. Mar.
4, 2008), aff’g No. A 72 484 380 (Immig. Ct. N.Y. City Mar.
18, 2004). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
When the BIA does not adopt the decision of the IJ to
any extent, this Court reviews only the decision of the BIA.
See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
2
This Court reviews the agency’s factual findings, including
adverse credibility determinations, under the substantial
evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also
Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 289 (2d
Cir. 2007). We review de novo questions of law and the
application of law to undisputed fact. See, e.g., Salimatou
Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
To the extent that Chen continues to assert that he may
be eligible for relief based on his wife’s forced abortion,
this Court has squarely rejected the notion that aliens are
per se eligible for relief based on the forced sterilization
of their spouse. Shi Liang Lin v. U.S. Dep’t of Justice,
494 F.3d 296, 309 (2d Cir. 2007). Before this Court, Chen
argues primarily that he established eligibility for relief
based on his resistance to China’s family planning policy
when he had a confrontation with the officials who came to
take his wife to be forcibly aborted. This argument is
unexhausted. The IJ explicitly found that Chen failed to
establish eligibility for relief based on any resistance to
China’s family planning policy where he did not assert that
anything happened to him as a result of his alleged
altercation with family planning officials. Because Chen
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failed to challenge that finding before the BIA, we decline
to consider it in the first instance. See Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007)
(holding that petitioners must raise to the BIA the specific
issues they later raise in this Court). 2
Because Chen was unable to show the objective
likelihood of persecution needed to make out an asylum
claim, Shi Liang Lin, 494 F.3d at 309, he was necessarily
unable to meet the higher standard required to succeed on
his claims for withholding of removal and CAT relief where
they are based on the same factual predicate. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
2
To the extent Chen asserts that his case should be
remanded to allow the agency to consider his other resistance
claim in light of this Court’s ruling in Shi Liang Lin, we
decline to do so. A claim based on resistance to a coercive
family planning policy existed as a basis for relief when Chen
filed his application for relief, 8 U.S.C. § 1101(a)(42), and
nothing in our decision in Shi Liang Lin impacts such
claims. As noted, the IJ rejected Chen’s claim based on his
alleged resistance. He cannot now avoid the consequences of his
failure to exhaust that claim before the BIA.
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