Gui Yong Liang v. Holder

12-928 Liang v. Holder BIA Abrams, IJ A099 930 516 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 29th day of May, two thousand thirteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 JOHN M. WALKER, JR., 9 ROBERT A. KATZMANN, 10 Circuit Judges. 11 _____________________________________ 12 13 GUI YONG LIANG, 14 Petitioner, 15 16 v. 12-928 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 ______________________________________ 22 23 FOR PETITIONER: Eric Y. Zheng, New York, New York. 24 25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 26 Attorney General; Erica B. Miles, 27 Senior Litigation Counsel; Jesse 28 Lloyd Busen, Trial Attorney, Office 29 of 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 DISMISSED in part and DENIED in part. 5 Petitioner Gui Yong Liang, a native and citizen of the 6 People’s Republic of China, seeks review of a February 10, 7 2012, order of the BIA, affirming the November 19, 2009, 8 decision of Immigration Judge (“IJ”) Steven R. Abrams, which 9 denied his applications for asylum, withholding of removal 10 and relief under the Convention Against Torture (“CAT”). In 11 re Gui Yong Liang, No. A099 930 516 (B.I.A. Feb. 10, 2012), 12 aff’g No. A099 930 516 (Immig. Ct. New York City Nov. 19, 13 2009). We assume the parties’ familiarity with the 14 underlying facts and procedural history in this case. 15 Under the circumstances of this case, we have reviewed 16 the IJ’s decision as supplemented by the BIA. See Yan Chen 17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 18 applicable standards of review are well-established. See 19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 20 510, 513 (2d Cir. 2009). 21 Title 8, Section 1158(a)(3) of the United States Code 22 provides that no court shall have jurisdiction to review the 23 agency’s finding that an asylum application was untimely 2 1 under 8 U.S.C. § 1158(a)(2)(B). Although we retain 2 jurisdiction to review constitutional claims and “questions 3 of law,” 8 U.S.C. § 1252(a)(2)(D), because Liang raises no 4 such challenge to the agency’s determination that he failed 5 to file within one year of his entry to the United States, 6 we lack jurisdiction to review the denial of asylum. See 7 U.S.C. § 1158(a)(2)(B), (D); Gui Yin Liu v. INS, 508 F.3d 8 716, 721-22 (2d Cir. 2007). We also lack jurisdiction to 9 review Liang’s unexhausted challenge to the denial of CAT 10 relief. Accordingly, we review only the agency’s denial of 11 withholding of removal. 12 The BIA did not err in finding that Liang was 13 ineligible for withholding of removal based on his failure 14 to demonstrate that he suffered past persecution on account 15 of his opposition to China’s family planning policies. See 16 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); 17 8 C.F.R § 1208.16(b)(1) (if an alien is determined to have 18 suffered past persecution, it shall be presumed that his 19 life or freedom would be threatened in the future). 20 Contrary to Liang’s argument, the agency properly considered 21 the context of the incident in which Chinese family planning 22 officials punched and kicked him and determined that this 3 1 single occurrence did not rise to the level of persecution, 2 as it was without aggravating factors such as arrest, 3 detention, or serious injury to Liang. See Beskovic v. 4 Gonzales, 467 F.3d 223, 226 (2d Cir. 2006); Jian Qui Liu v. 5 Holder, 632 F.3d 820, 821-22 (2d Cir. 2011) (per curiam). 6 While Liang also argues that the forced sterilization of his 7 wife constituted additional persecution which should be 8 considered cumulatively, this argument is unexhausted, as he 9 did not raise it before the BIA, and we decline to consider 10 it. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 11 n.1 (2d Cir. 2007). 12 For the foregoing reasons, the petition for review is 13 DISMISSED, in part, and DENIED, in part. Any pending 14 request for oral argument in this petition is DENIED in 15 accordance with Federal Rule of Appellate Procedure 16 34(a)(2), and Second Circuit Local Rule 34.1(b). 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 4