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