         12-1828
         Dong v. Holder
                                                                                         BIA
                                                                                   Elstein, IJ
                                                                               A094 816 971
                           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 17th day of July, two thousand thirteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _______________________________________
12
13       ZHI JIAN DONG,
14                Petitioner,
15
16                        v.                                    12-1828
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; John S. Hogan,
27                                     Senior Litigation Counsel; Michael
28                                     C. Heyse, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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        Zhi Jian Dong, a native and citizen of the People’s

 6   Republic of China, seeks review of an April 13, 2012,

 7   decision of the BIA affirming the December 14, 2009,

 8   decision of Immigration Judge (“IJ”) Annette S. Elstein,

 9   denying his application for asylum, withholding of removal,

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

11   re Zhi Jian Dong, No. A094 816 971 (B.I.A. Apr. 13, 2012),

12   aff’g No. A094 816 971 (Immig. Ct. N.Y. City Dec. 14, 2009).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15        We have reviewed both the IJ’s and BIA’s decisions “for

16   the sake of completeness.”     See Zaman v. Mukasey, 514 F.3d

17   233, 237 (2d Cir. 2008).     The applicable standards of review

18   are well-established.   See 8 U.S.C. § 1252(b)(4)(B); see

19   also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.

20   2009).

21   A.   BIA’s Standard of Review

22        Contrary to Dong’s contention, our decision in Hui Lin

23   Huang v. Holder, 677 F.3d 130 (2d Cir. 2012), does not

                                     2
 1   provide that an IJ errs by failing to explicitly delineate

 2   between factual and legal findings, but instead merely

 3   suggests that an IJ attempt “to make clear what part of his

 4   or her determination is fact-finding and what part

 5   represents conclusions of law.”   Id. at 137.    In this case,

 6   the IJ’s decision was clear in this regard, and there is no

 7   indication that the BIA applied an incorrect standard of

 8   review on appeal.   See id.; see also 8 C.F.R.

 9   § 1003.1(d)(3).

10   B.   Family Planning Claim

11        The agency correctly concluded that Dong was not

12   eligible for asylum solely on the basis of his wife’s forced

13   family planning procedures.   See Shi Liang Lin v. U.S. Dep’t

14   of Justice, 494 F.3d 296, 309-310 (2d Cir. 2007).

15   Nevertheless, he could still qualify for asylum or

16   withholding of removal by demonstrating that: (1) he engaged

17   in “other resistance” to the family planning policy; and (2)

18   he suffered harm rising to the level of persecution, or he

19   had a well-founded fear or likelihood of suffering such harm

20   as a direct result of his resistance. See id. at 313; see

21   also 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.16(b).

22



                                   3
 1         The BIA has defined “resistance” in the context of

 2   coercive family planning policies to cover “a wide range of

 3   circumstances, including expressions of general opposition,

 4   attempts to interfere with enforcement of government policy

 5   in particular cases, and other overt forms of resistance to

 6   the requirements of the family planning law.”   Matter of S-

 7   L-L-, 24 I. & N. Dec. 1, 10 (B.I.A. 2006).   In this case,

 8   the agency did not err in finding that Dong failed to

 9   demonstrate such resistance because impregnating his wife,

10   on its own, did not constitute other resistance, see Shi

11   Liang Lin, 494 F.3d at 313 (citation omitted), and other

12   than that act, Dong did not assert any acts of opposition in

13   which family planning officials were aware of his

14   involvement, Matter of S-L-L-, 24 I. & N. Dec. at 10.

15         Even assuming that Dong established “resistance,” the

16   BIA did not err in finding that he failed to allege harm

17   amounting to persecution on account of that resistance.      See

18   id.   Indeed, contrary to Dong’s assertion here, he did not

19   demonstrate that he suffered economic persecution because he

20   failed to provide any evidence establishing that the fines

21   imposed caused him “severe economic disadvantage.”   Matter

22   of T-Z-, 24 I. & N. Dec. 163, 170-75 (BIA 2007); see also


                                   4
 1   Guan Shan Liao v. U.S. Dep’t. of Justice, 293 F.3d 61, 70

 2   (2d Cir. 2002).   Thus, the agency reasonably concluded that

 3   Dong failed to establish that he suffered any independent,

 4   personal persecution qualifying him for relief.   See Shi

 5   Liang Lin, 494 F.3d at 309.

 6        Additionally, the agency did not err in concluding that

 7   Dong failed to demonstrate that his fear of future

 8   persecution on account of his family’s outstanding family

 9   planning fine was objectively reasonable because he admitted

10   that, despite failing to pay the fine during repeated visits

11   by authorities, he remained unharmed during those visits,

12   and that his wife continued live unharmed in China after his

13   departure.   See Melgar de Torres v. Reno, 191 F.3d 307, 313

14   (2d Cir. 1999).   Accordingly, because the agency did not err

15   in finding that Dong failed to demonstrate either past

16   persecution or a well-founded fear of persecution, it

17   reasonably denied him asylum, withholding of removal, and

18   CAT relief insofar as those claims were based on the same

19   factual predicate.   See Paul v. Gonzales, 444 F.3d 148, 156

20   (2d Cir. 2006).

21   C.   Illegal Departure Claim

22        Contrary to Dong’s contention, he did not establish his

23   eligibility for relief based on his alleged illegal
                                    5
 1   departure from China.   First, as the IJ noted, he did not

 2   establish that he departed China illegally as he testified

 3   that he left that country using his own passport.    Moreover,

 4   even if his departure was illegal, “the possibility that the

 5   applicant may be subjected to criminal prosecution and

 6   perhaps severe punishment as a result of his illegal

 7   departure from [his home country] does not demonstrate a

 8   likelihood of persecution under the Act,”    Matter of Sibrun,

 9   18 I. & N. Dec. 354, 359 (B.I.A. 1983); see also Saleh v.

10   U.S. Dep't of Justice, 962 F.2d 234, 239 (2d Cir. 1992)

11   (“punishment for violation of a generally applicable

12   criminal law is not persecution”), and Dong does not cite

13   any record evidence demonstrating that authorities would be

14   motivated to arrest or punish him based on his purported

15   illegal departure for any reason other than law enforcement.

16       Additionally, an applicant is not “entitled to CAT

17   protection based solely on the fact that []he is part of the

18   large class of persons who have illegally departed China,”

19   Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60

20   (2d Cir. 2005); see also Mu-Xing Wang v. Ashcroft, 320 F.3d

21   130, 143-44 (2d Cir. 2003), and Dong failed to establish

22   that individuals similarly situated to him have suffered

23   torture upon removal to China.    Accordingly, the record does
                                   6
 1   not compel the conclusion that Dong established his

 2   eligibility for relief based on his illegal departure claim.

 3   See Saleh, 962 F.2d at 239; see also Mu Xiang Lin, 432 F.3d

 4   at 159-60.

 5       For the foregoing reasons, the petition for review is

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

 7   removal that the Court previously granted in this petition

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

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

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk




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