         10-1637-ag
         Fong v. Holder
                                                                                       BIA
                                                                                  Rohan, IJ
                                                                               A099 025 378
                               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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19th day of July, two thousand eleven.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                        Circuit Judges.
11       _______________________________________
12
13       XIANG CHUN FONG, ALSO KNOWN AS, XIANG
14       CHUN FANG, ALSO KNOWN AS XIANGCHUN
15       FANG,
16                Petitioner,
17
18                        v.                                    10-1637-ag
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _______________________________________
24
25       FOR PETITIONER:                Dehai Zhang, Flushing, New York.
26
27       FOR RESPONDENT:                Tony West, Assistant Attorney
28                                      General; Michelle Gorden Latour,
29                                      Assistant Director; Tracie N. Jones,
30                                      Trial Attorney, Office of
31                                      Immigration Litigation, Civil
32                                      Division, United States Department
33                                      of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review is DENIED.

 5       Petitioner Xiang Chun Fong, a native and citizen of the

 6   People’s Republic of China, seeks review of an April 6,

 7   2010, order of the BIA affirming the May 2, 2008, decision

 8   of Immigration Judge (“IJ”) Patricia Rohan, denying Fong’s

 9   applications for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).   In re Xiang

11   Chun Fong No. A099 025 378 (B.I.A. Apr. 6, 2010), aff’g No.

12   A099 025 378 (Immig. Ct. N.Y. City May 2, 2008).     We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history of the case.

15       Under the circumstances of this case, we have reviewed

16   the decision of the IJ as supplemented by the BIA.     See Yan

17   Chen 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       As an initial matter, the BIA’s application of Shi

22   Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d

23   Cir. 2007) (en banc), and Matter of J-S-, 24 I.&.N. Dec. 520
                                  2
 1   (A.G. 2008), was correct because the BIA was bound to apply

 2   the law in effect at the time it entered its decision.       See

 3   8 C.F.R. § 1003.1(d)(3)(ii); see also NLRB v. Coca-Cola

 4   Bottling Co., 55 F.3d 74, 78 (2d Cir. 1995) (“Appellate

 5   courts ordinarily apply the law in effect at the time of the

 6   appellate decision”).

 7       Under Shi Liang Lin, Fong was ineligible for relief

 8   based on harm suffered by his wife and instead could qualify

 9   for asylum only if he established that he was persecuted for

10   his resistance to the coercive family planning policy, or

11   had a well-founded fear that he would be subject to

12   persecution for such resistance.    See Shi Liang Lin, 494

13   F.3d at 301, 309-10.    Fong’s claim that he engaged in “other

14   resistance” to China’s family planning policy is unexhausted

15   because he did not raise that argument before the BIA. See

16   Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (providing

17   that, in addition to the statutory requirement that

18   petitioners exhaust the categories of relief they seek, 8

19   U.S.C. § 1252(d)(1), petitioners must also raise to the BIA

20   the specific issues he or she later raises in this Court);

21   see also Steevenez v. Gonzales, 476 F.3d 114, 117-118 (2d

22   Cir. 2007) (stating that, in determining which arguments

23   constitute “issues,” which must be exhausted, and which


                                    3
 1   constitute “subsidiary arguments,” and which do not, the

 2   Court will examine whether an unexhausted argument

 3   “constitutes a ground, in and of itself, on which an IJ's

 4   denial of [relief] may be based”).

 5       Moreover, even assuming that Fong engaged in other

 6   resistance, substantial evidence supports the agency’s

 7   determination that Fong did not establish that he suffered

 8   past persecution based on his emotional suffering stemming

 9   from the harm to his wife or the imposition of a 3,000 yuan

10   fine.   See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d

11   61, 70 (2d Cir. 2002) (finding that the agency reasonably

12   concluded that the petitioner failed to demonstrate economic

13   persecution because he did not produce evidence of his

14   income in China, his net worth at the time of the fines, or

15   any other facts that would make it possible to evaluate his

16   personal financial circumstances in relation to the fines

17   imposed by the government); see also Shi Liang Lin, 394 F.3d

18   at 309 (“We do not deny that an individual whose spouse

19   undergoes, or is threatened with, a forced abortion or

20   involuntary sterilization may suffer a profound emotional

21   loss as a partner and a potential parent.   But such a loss

22   does not change the requirement that we must follow the

23   ‘ordinary meaning’ of the language chosen by Congress,


                                   4
 1   according to which an individual does not automatically

 2   qualify for ‘refugee’ status on account of a coercive

 3   procedure performed on someone else.”).

 4       Because Fong failed to establish past persecution, he

 5   was not entitled to a presumption of future persecution. See

 6   8 C.F.R. § 1208.13(b)(1).   The agency reasonably concluded

 7   that Fong failed to separately establish a well-founded fear

 8   of future persecution.   Fong’s only basis for that fear was

 9   his desire to have more children.   Moreover, he testified

10   that his wife had not suffered any harm since his departure

11   from China.   See Jian Xing Huang v. INS, 421 F.3d 125, 129

12   (2d Cir. 2005) (holding that, absent solid support in the

13   record for the petitioner’s assertion that he would be

14   subjected to persecution, his fear was “speculative at

15   best”); see also Melgar de Torres v. Reno, 191 F.3d 307, 313

16   (2d Cir. 1999) (finding that where asylum applicant’s mother

17   and daughters continued to live in petitioner’s native

18   country, claim of well-founded fear was diminished).

19       Finally, because Fong has not raised before this Court

20   any challenge to the agency’s denial of withholding of

21   removal or CAT relief, we decline to address those forms of

22   relief.   See Gui Yin Liu v. INS, 508 F.3d 716, 723 n.6 (2d

23   Cir. 2007).

                                   5
1        For the foregoing reasons, the petition for review is

2    DENIED.   As we have completed our review, any stay of

3    removal that the Court previously granted in this petition

4    is VACATED, and any pending motion for a stay of removal in

5    this petition is DISMISSED as moot. Any pending request for

6    oral argument in this petition is DENIED in accordance with

7    Federal Rule of Appellate Procedure 34(a)(2), and Second

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12
13




                                    6
