10-2858-ag

Dong v. Holder

BIA

Videla, IJ

A099 687 201

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 16th day of March, two thousand twelve.

PRESENT:

GUIDO CALABRESI,

ROBERT A. KATZMANN,

RICHARD C. WESLEY,

 Circuit Judges.

_________________________________________

JINHUI DONG, AKA JIN HUI DONG,

Petitioner, 

 v. 10-2858-ag

 NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_________________________________________

 

FOR PETITIONER: Gary J. Yerman, New York, N.Y.

FOR RESPONDENT: Tony West, Assistant Attorney General;

Richard M. Evans, Assistant Director;

Andrew M. Oliveira, Trial Attorney,

Office of Immigration Litigation,

United States Department of Justice,

Washington, D.C.
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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.

Petitioner Jinhui Dong, a native and citizen of the

People’s Republic of China, seeks review of a June 21, 2010,

decision of the BIA affirming the July 9, 2008, decision of an

Immigration Judge (“IJ”) denying his applications for asylum,

withholding of removal and relief under the Convention Against

Torture (“CAT”). In re Jinhui Dong, No. A099 687 201 (B.I.A.

June 21, 2010), aff’g No. A099 687 201 (Immig. Ct. N.Y. City

July 9, 2008). We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

Under the circumstances of this case, we have considered

the IJ’s decision as modified by the BIA decision. See Xue

Yong Hang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

2005). The applicable standards of review are wellestablished. 8 U.S.C. § 1252(b)(4)(B); Aliyev v. Mukasey, 549

F.3d 111, 115 (2d Cir. 2008). 

Here, substantial evidence supports the agency’s

conclusion that Dong was not entitled to asylum or withholding

because he failed to demonstrate either that he had been
3

persecuted, or that he had a well-founded fear of persecution,

under China’s coercive family planning policy. The fact that

Dong’s wife was forced to undergo an abortion is not

sufficient to entitle Dong to asylum or withholding of

removal. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d

296, 313 (2d Cir. 2007). Rather, in order to establish

eligibility for asylum and withholding of removal on this

basis, Dong must demonstrate that he has been, or will be,

persecuted on the basis of other resistance to the coercive

family planning policies. Id.

Dong argues that conceiving a child in violation of the

family planning policies constitutes other resistance. He did

not, however, raise this argument to the BIA, where he argued

only that he was entitled to relief on the basis of his wife’s

involuntary abortion. Accordingly, because Dong failed to

raise this issue in his brief to the BIA, and because the

Government has raised that failure to exhaust in its brief to

this Court, we decline to consider Dong’s argument that

impregnating his wife in violation of the family planning

policies constitutes other resistance sufficient to entitle

him to asylum and withholding of removal. See Lin Zhong v.

U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir 2007);

Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004).
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Dong also argues that the fine imposed on his family

after his wife’s abortion constitutes persecution on the basis

of a protected ground. Nothing in the record, however,

compels this conclusion. Rather, Dong’s testimony

demonstrated that the fine was imposed before he fought with

family planning officials, and, thus, was not on account of

Dong’s resistance to the family planning policies, but,

rather, merely because the couple had violated the policies. 

See Shi Liang Lin, 494 F.3d at 313. Accordingly, the agency

did not err in finding that Dong failed to demonstrate the

nexus to a protected ground required to establish his

eligibility for asylum and withholding of removal. See

8 U.S.C. § 1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A). 

Even assuming Dong’s altercation with authorities was

“other resistance,” the agency reasonably concluded that Dong

had failed to establish that he was persecuted as a result, as

he was neither detained nor physically mistreated. See

Ivanishvilli v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

Cir. 2006) (noting that harm must rise above “mere harassment”

to constitute persecution); Matter of Acosta, 19 I. & N. Dec.

211, 222 (BIA 1985) (defining persecution as a “threat to the

life or freedom of, or the infliction of suffering or harm
5

upon, those who differ in a way regarded as offensive”),

overruled, in part, on other grounds, INS v. Cardoza-Fonseca,

480 U.S. 421 (1987). Similarly, Dong failed to establish a

fear of future persecution. Other than his testimony that he

feared arrest on the basis of his confrontation with the

officials, Dong offered no evidence that he would be arrested,

detained or otherwise harmed if returned to China. Absent

“solid support” in the record that his fear is objectively

reasonable, Dong’s claim of future persecution is “speculative

at best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d

Cir. 2005). Therefore, as the agency reasonably found that

Dong failed to demonstrate either past persecution or a wellfounded fear of future persecution, it did not err by denying

his applications for asylum, withholding of removal, and CAT

relief. See 8 C.F.R. § 1208.13(b)(2)(iii); 8 C.F.R.

§ 1208.16(b)(2)(i); see also Paul v. Gonzales, 444 F.3d 148,

156 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk