11-3812 BIA
Dong v. Holder Hladylowycz, IJ
A075 776 847
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 23rd day of July, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RICHARD C. WESLEY,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 XING AN DONG, AKA XING EN DONG,
14 Petitioner,
15
16 v. 11-3812
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jan Allen Reiner, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Blair O’Connor,
27 Assistant Director; R. Alexander
28 Goring, 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 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Xing An Dong, a native and citizen of China,
6 seeks review of an August 25, 2011, reissued decision of the
7 BIA, affirming an Immigration Judge’s March 3, 1999 denial
8 of asylum and withholding of removal. In re Xing An Dong,
9 No. A075 776 847 (B.I.A. Aug. 25, 2011), aff’g No. A075 776
10 847 (Immig. Ct. N.Y. City Mar. 3, 1999). We assume the
11 parties’ familiarity with the underlying facts and
12 procedural history in this case.
13 Under the circumstances of this case, we have reviewed
14 the IJ’s decision as the final agency determination. See
15 Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The
16 applicable standards of review are well established. See 8
17 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
18 513 (2d Cir. 2009).
19 Even assuming that Dong was credible, the agency did
20 not err in finding that he failed to demonstrate a
21 well-founded fear of persecution in China. See Jian Xing
22 Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005). As the
2
1 agency reasonably noted, Dong failed to show that any of his
2 neighbors suffered harm for their role in the January 1998
3 altercation with family planning officers. See Melgar de
4 Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999). Indeed,
5 Dong failed to offer any evidence showing that authorities
6 sought him following the issuance of his summons in April
7 1998 or had any continued interest in him.
8 Moreover, the agency did not err in according
9 diminished weight to Dong’s summons because it was not
10 authenticated by any means. See Xiao Ji Chen v. U.S. Dep’t
11 of Justice, 471 F.3d 315, 329 (2d Cir. 2006). The agency
12 also reasonably concluded that Dong’s summons, which merely
13 directed him to report to the local precinct for
14 questioning, was entitled to minimal weight because it did
15 not indicate the purpose of the questioning. See Jian Xing
16 Huang, 421 F.3d at 128-29; Xiao Ji Chen, 471 F.3d at 329.
17 Under these circumstances, the agency did not err in
18 concluding that Dong failed to establish a well-founded fear
19 of persecution.
20 As Dong failed to meet his burden for asylum, he
21 necessarily failed to meet the higher burden required to
22 succeed on a claim for withholding of removal. See Gomez v.
3
1 INS, 947 F.2d 660, 665 (2d Cir. 1991). Although Dong also
2 argues that he established his eligibility for relief under
3 the Convention Against Torture (“CAT”), Dong filed his
4 application prior to the effective date of CAT’s
5 implementing legislation and did not subsequently assert a
6 claim for CAT relief before the agency.
7 Because the agency did not err in finding that Dong
8 failed to establish his eligibility for asylum and
9 withholding of removal, we decline to consider his
10 challenges to the agency’s alternative basis for denial –
11 that he was not credible. See INS v. Bagamasbad, 429 U.S.
12 24, 25 (1976) (per curiam). Even assuming error in the
13 agency’s adverse credibility determination, given the
14 agency’s reasonable alternative burden finding, remand of
15 these proceedings would be futile. See Cao He Lin v. U.S.
16 Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
4
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
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