11-2399-ag
Huizhen Dong v. Holder
                                                                                BIA
                                                                           Nelson, IJ
                                                                        A076 143 164
                         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 25 th day of September, two thousand twelve.

PRESENT:
         REENA RAGGI,
         RICHARD C. WESLEY,
         CHRISTOPHER F. DRONEY,
              Circuit Judges.
_____________________________________

HUIZHEN DONG,
         Petitioner,

                   v.                                   11-2399-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_____________________________________
FOR PETITIONER:                   Gary J. Yerman, Esq., New York, New
                                  York.
FOR RESPONDENT:                   Tony West, Assistant Attorney
                                  General; Daniel E. Goldman, Senior
                                  Litigation Counsel; Jonathan F.
                                  Potter, Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington D.C.
    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 Huizhen Dong, a native and citizen of the

People’s Republic of China, seeks review of a May 18, 2011

decision of the BIA affirming the June 3, 2010 decision of

Immigration Judge (“IJ”) Barbara A. Nelson, denying her

application for asylum, withholding of removal, and relief

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

Dong, No. A076 143 164 (B.I.A. May 18, 2011), aff’g No. A076

143 164 (Immig. Ct. N.Y.C. June 3, 2010).    We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

    Under the circumstances of this case, we have reviewed

both the decisions of the IJ and BIA “for the sake of

completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

2008).   The applicable standards of review are well

established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

Holder, 562 F.3d 510, 513 (2d Cir. 2009).




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1.   Asylum

     Dong first challenges the agency’s decision that she

failed to demonstrate that she filed for asylum within one

year of her arrival to the United States.   We lack

jurisdiction to review this challenge, see 8 U.S.C.

§ 1158(a)(3), except insofar as it raises constitutional

claims or “questions of law,” id. § 1252(a)(2)(D).     Dong’s

argument that (1) her own testimony, (2) her passport stamp,

and (3) her brother’s testimony established her April 2008

arrival are factual challenges that we may not consider.

See Jin Jin Long v. Holder, 620 F.3d 162, 165 n.3 (2d Cir.

2010).

     To the extent Dong argues that the BIA erred as a

matter of law in declining to consider a new translation of

her passport stamp, we are not persuaded.   The BIA is not

permitted to consider new evidence on appeal, see 8 C.F.R. §

1003.1(d)(3)(iv), and the agency thus did not err by

“reject[ing] th[is] evidence without consideration,” De La

Rosa v. Holder, 598 F.3d 103, 108 n.2 (2d Cir. 2010).

Moreover, to the extent Dong further argues that the IJ

erred as a matter of law in failing to consider the date of

entry alleged by the government on Dong’s initial Notice to

Appear, see Dong Zhong Zheng v. Mukasey, 552 F.3d 277,

                             3
285–86 (2d Cir. 2009), Dong’s failure to exhaust this issue

before the BIA precludes us from reviewing it, see Foster v.

INS, 376 F.3d 75, 77-78 (2d Cir. 2004).

2.   Withholding of Removal and CAT

     We need not reach any of Dong’s other arguments

regarding the agency’s denial of her asylum claim.     However,

insofar as Dong further challenges the agency’s denial of

her withholding of removal and CAT claims, we identify no

error in the agency’s conclusion that Dong failed to

demonstrate a well-founded fear of future persecution, let

alone to meet the higher standards required to prevail on

withholding of removal and CAT claims.     See Lecaj v. Holder,

616 F.3d 111, 119-20 (2d Cir. 2010).

     The agency did not err in determining that Dong had not

demonstrated a reasonable fear that the Chinese government

would target her for persecution.     Although Dong presented

evidence that the leader of her church had suffered

persecution, Dong presented no evidence that any ordinary

members of her church had ever been harmed by the government

in any manner.   See Jian Xing Huang v. INS, 421 F.3d 125,

129 (2d Cir. 2005) (stating that fear is not objectively

reasonable if it lacks “solid support” in record and is

merely “speculative at best”).    Moreover, while the State

                              4
Department’s 2009 Religious Freedom Report demonstrated that

Chinese authorities sought to limit proselytizing, the same

report also indicated that such policies varied widely by

region.   In the absence of any evidence of such policies in

Dong’s native Fujian Province, the agency was not required

to conclude that Dong had demonstrated an objectively

reasonable fear of persecution.   See Siewe v. Gonzales, 480

F.3d 160, 167-68 (2d Cir. 2008) (“Where there are two

permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” (internal

quotation marks omitted)).

     Finally, the agency reasonably concluded that Dong had

not established a “systemic, pervasive, or organized”

pattern of persecution of Christians in China.   See Santoso

v. Holder, 580 F.3d 110, 112 n.1 (2d Cir. 2009); Mufied v.

Mukasey, 508 F.3d 88, 91 (2d Cir. 2007).

3.   Conclusion

     For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot.   Any pending request for

oral argument in this petition is DENIED in accordance with

                              5
Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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