         12-928
         Liang v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A099 930 516
                            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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 29th day of May, two thousand thirteen.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOHN M. WALKER, JR.,
 9                ROBERT A. KATZMANN,
10                     Circuit Judges.
11       _____________________________________
12
13       GUI YONG LIANG,
14                Petitioner,
15
16                         v.                                   12-928
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Eric Y. Zheng, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Erica B. Miles,
27                                     Senior Litigation Counsel; Jesse
28                                     Lloyd Busen, Trial Attorney, Office
29                                     of Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 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 DISMISSED in part and DENIED in part.

 5       Petitioner Gui Yong Liang, a native and citizen of the

 6   People’s Republic of China, seeks review of a February 10,

 7   2012, order of the BIA, affirming the November 19, 2009,

 8   decision of Immigration Judge (“IJ”) Steven R. Abrams, which

 9   denied his applications for asylum, withholding of removal

10   and relief under the Convention Against Torture (“CAT”).      In

11   re Gui Yong Liang, No. A099 930 516 (B.I.A. Feb. 10, 2012),

12   aff’g No. A099 930 516 (Immig. Ct. New York City Nov. 19,

13   2009).   We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as supplemented by the BIA.    See Yan Chen

17   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       Title 8, Section 1158(a)(3) of the United States Code

22   provides that no court shall have jurisdiction to review the

23   agency’s finding that an asylum application was untimely

                                   2
 1   under 8 U.S.C. § 1158(a)(2)(B).   Although we retain

 2   jurisdiction to review constitutional claims and “questions

 3   of law,” 8 U.S.C. § 1252(a)(2)(D), because Liang raises no

 4   such challenge to the agency’s determination that he failed

 5   to file within one year of his entry to the United States,

 6   we lack jurisdiction to review the denial of asylum.     See

 7   U.S.C. § 1158(a)(2)(B), (D); Gui Yin Liu v. INS, 508 F.3d

 8   716, 721-22 (2d Cir. 2007).   We also lack jurisdiction to

 9   review Liang’s unexhausted challenge to the denial of CAT

10   relief.   Accordingly, we review only the agency’s denial of

11   withholding of removal.

12       The BIA did not err in finding that Liang was

13   ineligible for withholding of removal based on his failure

14   to demonstrate that he suffered past persecution on account

15   of his opposition to China’s family planning policies.     See

16   Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004);

17   8 C.F.R § 1208.16(b)(1) (if an alien is determined to have

18   suffered past persecution, it shall be presumed that his

19   life or freedom would be threatened in the future).

20   Contrary to Liang’s argument, the agency properly considered

21   the context of the incident in which Chinese family planning

22   officials punched and kicked him and determined that this


                                   3
 1   single occurrence did not rise to the level of persecution,

 2   as it was without aggravating factors such as arrest,

 3   detention, or serious injury to Liang.     See Beskovic v.

 4   Gonzales, 467 F.3d 223, 226 (2d Cir. 2006); Jian Qui Liu v.

 5   Holder, 632 F.3d 820, 821-22 (2d Cir. 2011) (per curiam).

 6   While Liang also argues that the forced sterilization of his

 7   wife constituted additional persecution which should be

 8   considered cumulatively, this argument is unexhausted, as he

 9   did not raise it before the BIA, and we decline to consider

10   it.   Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107

11   n.1 (2d Cir. 2007).

12         For the foregoing reasons, the petition for review is

13   DISMISSED, in part, and DENIED, in part.    Any pending

14   request for oral argument in this petition is DENIED in

15   accordance with Federal Rule of Appellate Procedure

16   34(a)(2), and Second Circuit Local Rule 34.1(b).

17                                FOR THE COURT:
18                                Catherine O’Hagan Wolfe, Clerk
19




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