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.
2

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). 
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)).

3

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
4

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
5

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
6

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