09 -24 66 -ag

Ta ng v. Holder BIA Hom, IJ A094 046 391 

### UNITED STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL E F F ECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM I TTED 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 1 day of April, two thousand ten. st 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge , 9 GUIDO CALABRESI, 10 DEBRA ANN LIVINGSTON, 11 Circuit Judges . 12

_______________________________________ 13 14 LANYING TANG, 15 Petitioner , 16 17 v. 09-2466-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent . 22

_______________________________________ 23 24 FOR PETITIONER: Dehai Zhang, Flushing, New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Terri J. Scadron, Assistant 28 Director; Heather S. Navarro, Law 29 Clerk, Office of Immigration 30 Litigation, United States Department 31 of Justice, Washington, D.C.2 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 in part and DISMISSED in part. 5 Lanying Tang, a native and citizen of the People’s Republic of China, 6 seeks review of a May 19, 2009, order of 7 the BIA affirming the July 10, 2007, decision of Immigration 8 Judge (“IJ”) Sandy Hom, which pretermitted her application 9 for asylum, and denied her application for withholding of 1 0 removal and relief under the Convention Against Torture 1 1 (“CAT”). In re Lanying Tang , No. A094 046 391 (B.I.A. May 19, 2009), aff’gNo. A094 046 391 1 2 (Immig. Ct. N.Y. City 1 3 July 10, 2007). We assume the parties’ familiarity with the 1 4 underlying facts and procedural history in this case. 1 5 “Where the BIA adopts the decision of the IJ and merely 1 6 supplements the IJ’s decision . . . we review the decision 1 7 of the IJ as supplemented by the BIA.” Yan Chen v. Gonzales, 1 8 417 F.3d 268, 271 (2d Cir. 2005). However, when the BIA 1 9 affirms the IJ’s decision in some respects but not others, 2 0 we review the IJ’s decision as modified by the BIA’s 2 1 decision, i.e. , minus the arguments for denying relief that 2 2 the BIA rejected. See Xue Hong Yang v. U.S. Dep't of3 1 Justice, 426 F.3d 520, 522 (2d Cir. 2005). Here, the BIA’s 2 decision focused on the IJ’s holding that Tang failed to 3 meet her burden of proof, making it unclear whether the BIA 4 agreed with the IJ’s alternative adverse credibility 5 determination. Under these circumstances, we dispose of 6 Tang’s case on burden of proof grounds and “assume, but do 7 not determine” her credibility for purposes of our analysis. Yan Chen, 417 F.3d at 271. 8 The applicable standards of 9 review are well-established. See 8 U.S.C. 1 0 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008) 11 ; Manzur v. U.S. Dep’t of Homeland 12 Sec., 494 F.3d 281, 289 (2d Cir. 2007). 13 I. Asylum 1 4 We dismiss the petition for review in part because we 1 5 lack jurisdiction to consider Tang’s challenge to the 1 6 agency’s pretermission of her untimely asylum application. 17 See8 U.S.C. § 1158(a)(3) (explaining that no court shall 1 8 have jurisdiction to review any determination of the 1 9 Attorney General regarding the timeliness of an asylum 2 0 application under section 1158(a)(2)(B)). Although we 2 1 retain jurisdiction to review constitutional claims and 2 2 questions of law, 8 U.S.C. § 1252(a)(2)(D), Tang raises no4 1 such argument, essentially disputing the IJ’s factual 2 determination that she failed to demonstrate “extraordinary circumstances .” See 8 U.S.C. § 1158(a)(3). 3 4 II. Withholding of Removal 5 With respect to Tang’s application for withholding of 6 removal, we find that substantial evidence supports the 7 agency’s finding that she failed to meet her burden of 8 proof. The agency reasonably found that Tang failed to 9 corroborate her claim that she had been forced to have an 1 0 abortion. See Cao He Lin v. U.S. Dep’t of Justice , 428 F.3d 391, 401 (2d Cir. 2005) 1 1 (finding that although an applicant 1 2 can in some cases satisfy his burden of proof with his own 1 3 testimony, “where the circumstances indicate that an 1 4 applicant has, or with reasonable effort could gain, access 1 5 to relevant corroborating evidence, his failure to produce 1 6 such evidence in support of his claim is a factor that may 1 7 be weighed in considering whether he has satisfied the 1 8 burden of proof” (internal quotation marks omitted)); see also 8 U.S.C. § 1231(b)(3)(C) . 1 9 Moreover, the agency 2 0 reasonably determined that Tang failed to establish a clear 2 1 probability of future persecution based on any hypothetical 2 2 future resistance to the population control policy. See85

C.F.R. § 1208.16(b)(2) 1 ; see also Jian Xing Huang v. INS , 421 F.3d 125, 129 (2d Cir. 2005). 2 3 Substantial evidence also supports the agency’s finding 4 that Tang was ineligible for relief based on her labor union 5 activities. We find no error in the IJ’s determination that Tang’s three-day detention and 3,000 RMB fine 6 do not rise to 7 the level of persecution under the INA. See Ivanishvili v. 8 U.S. Dep’t of Justice , 433 F.3d 332, 341 (2d Cir. 2006) 9 (explaining that the difference between harassment and 1 0 persecution is “necessarily one of degree that must be decided on a case-by-case basis” 1 1 ); see also Joaquin-Porras 12 v. Gonzales , 435 F.3d 172, 182 (2d Cir. 2006) (upholding 1 3 agency’s determination that applicant was not eligible for 1 4 withholding of removal based on “brief” detention after which he was released “without harm”) 15 . Nor did the agency 1 6 err in concluding that Tang did not show a likelihood of 1 7 future persecution based on her labor union activities 1 8 because she “did not continue her union activities after 1 9 being detained on one occasion,” and did not show “that the 2 0 Chinese authorities have continued to monitor her or her 2 1 husband and son, who remain in China.” Absent any such 2 2 showing, we agree that Tang’s claim was too speculative to merit relief. See Jian Xing Huang , 421 F.3d at 129. 236 1 Finally, Tang does not challenge the agency’s denial of 2 her CAT claim before this Court. Because addressing that 3 claim does not appear to be necessary to avoid manifest 4 injustice, we deem it waived. See Yueqing Zhang v. Gonzales , 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005). 5 For the foregoing reasons, the petition for review is 6 7 DENIED in part and DISMISSED in part. As we have completed 8 our review, any stay of removal that the Court previously 9 granted in this petition is VACATED, and any pending motion 1 0 for a stay of removal in this petition is DISMISSED as moot. 1 1 Any pending request for oral argument in this petition is 1 2 DENIED in accordance with Federal Rule of Appellate 1 3 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 1 4 FOR THE COURT: 1 5 Catherine O’Hagan Wolfe, Clerk 16 17 18