         08-3636-ag
         Weng v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                                A98 277 284
                               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 8 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                 ROSEMARY S. POOLER,
 8                 RICHARD C. WESLEY,
 9                 DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11       _______________________________________
12
13       ZHEN GUI WENG,
14                Petitioner,
15
16                        v.                                    08-3636-ag
17                                                              NAC
18       ERIC H. HOLDER JR., *
19                Respondent.
20       _______________________________________
21
22
23
24
25


                      *
                    Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
             Attorney General Eric H. Holder Jr. is substituted for former
             Attorney General Michael B. Mukasey as Respondent in this case.
 1   FOR PETITIONER:        Norman Kwai Wing Wong, New York, New
 2                          York.
 3
 4   FOR RESPONDENT:        Gregory G. Katsas, Assistant
 5                          Attorney General, Michelle G.
 6                          Latour, Assistant Director, Kimberly
 7                          A. Burdge, Trial Attorney, Office of
 8                          Immigration Litigation, Civil
 9                          Division, United States Department
10                          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 in part and DISMISSED in part.

5        Petitioner Zhen Gui Weng, a native and citizen of the

6    People’s Republic of China, seeks review of a June 30, 2008,

7    order of the BIA affirming the July 13, 2006, decision of

8    Immigration Judge (“IJ”) Sandy K. Hom, pretermitting his

9    asylum application and denying his applications for

10   withholding of removal and relief under the Convention

11   Against Torture (“CAT”).   In re Zhen Gui Weng, No. A98 277

12   284 (B.I.A. Jun. 30, 2008), aff’g No. A98 277 284 (Immig.

13   Ct. N.Y. City July 13, 2006).       We assume the parties’

14   familiarity with the underlying facts and procedural history

15   of the case.

16       As an initial matter, we are without jurisdiction to

17   review the IJ’s decision insofar as he found that Weng’s

                                     2
1    asylum application was untimely under 8 U.S.C.

2    § 1158(a)(2)(B).   See 8 U.S.C. § 1158(a)(3).      We dismiss the

3    petition of review to that extent.       However, we may review

4    Weng’s challenge to the agency’s denial of his applications

5    for withholding of removal and CAT relief.

6        When the BIA adopts the decision of the IJ and

7    supplements the IJ’s decision, we review the decision of the

8    IJ as supplemented by the BIA.       See Yan Chen v. Gonzales,

9    417 F.3d 268, 271 (2d Cir. 2005).       We review the agency’s

10   factual findings under the substantial evidence standard.

11   8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519

12   F.3d 90, 95 (2d Cir. 2008).     We review de novo questions of

13   law and the application of law to undisputed fact.       See

14   Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

15       The BIA properly noted in its decision that Weng was

16   not per se eligible for asylum relief because of his wife’s

17   alleged forced sterilization.       See Shi Liang Lin v. U.S.

18   Dep’t of Justice, 494 F.3d 296, 309-10 (2d Cir. 2007).          Weng

19   does not challenge that finding; rather, he argues that he

20   is eligible for withholding of removal because he suffered

21   past persecution on account of his “other resistance” to

22   China’s family planning policies.       Because Weng failed to


                                     3
1    assert that argument before the BIA, we decline to consider

2    this unexhausted argument. 1   See Lin Zhong v. U.S. Dep’t of

3    Justice, 480 F.3d 104, 119-20 (2d Cir. 2007); Foster v. INS,

4    376 F.3d 75, 78 (2d Cir. 2004).    Moreover, because Weng

5    fails to challenge the IJ’s particular burden of proof

6    findings – e.g., that Weng’s claim was undermined by the

7    twelve-year period he remained in China after the alleged

8    persecution - we deem any such argument waived.    See Yueqing

9    Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.

10   2005).

11       Finally, substantial evidence supports the IJ’s finding

12   that Weng failed to demonstrate that he will more likely

13   than not be persecuted or tortured if returned to China.

14   Weng’s argument that the country conditions evidence he

15   submitted is sufficient to demonstrate his eligibility for

16   CAT relief is without merit as we have held that an

17   applicant must present particularized evidence demonstrating

18   that, if repatriated, he will “more likely than not be


              1
            We note that Weng’s argument that he is eligible for
       asylum and that his proceedings should be remanded to the
       BIA in the interest of due process is also without merit.
       See Yuen Jin v. Mukasey, 538 F.3d 143, 147 (2d Cir. 2008)
       (stating that asylum applicants “do [] not have a liberty
       or property interest in a discretionary grant of
       asylum”).

                                    4
1    subjected to torture.”   Mu Xiang Lin v. U.S. Dep’t of

2    Justice, 432 F.3d 156, 158 (2d Cir. 2005).    Thus, because

3    Weng provides no basis for the agency to conclude that he,

4    or someone in his “particular alleged circumstances,” faces

5    an elevated risk of torture, we find no error in the IJ’s

6    decision.   See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144

7    (2d Cir. 2003).

8        For the foregoing reasons, the petition for review is

9    DENIED in part and DISMISSED in part.    As we have completed

10   our review, the pending motion for a stay of removal in this

11   petition is DENIED as moot.
12
13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16
17




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