         08-1711-ag (L); 08-1750-ag (Con)
         Dong v. Holder
                                                                                         BIA
                                                                                   Morace, IJ
                                                                                 A099 083 367
                                                                                 A099 083 366
                                 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 18 th day of May, two thousand ten.
 5
 6       PRESENT:
 7                         GUIDO CALABRESI,
 8                         PETER W. HALL,
 9                         DENNY CHIN,
10                             Circuit Judges.
11
12       _________________________________________
13       YAN FANG DONG, YAO DI CHEN,
14                Petitioners,
15
16                           v.                                    08-1711-ag (L);
17                                                                 08-1750-ag (Con)
18                                                                 NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL, 1
21                Respondent.
22       _________________________________________
23       FOR PETITIONERS:       Lee Ratner, Law Offices of Michael



                  1
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr., is
         automatically substituted for former Attorney General
         Michael B. Mukasey as respondent in this case.
 1                           Brown, New York, New York.
 2
 3   FOR RESPONDENT:         Michael F. Hertz, Acting Assistant
 4                           Attorney General; Linda S. Wernery,
 5                           Assistant Director; Thankful T.
 6                           Vanderstar, Trial Attorney, Office
 7                           of Immigration Litigation, United
 8                           States Department of Justice,
 9                           Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

12   Board of Immigration Appeals (“BIA”) decision, it is hereby

13   ORDERED, ADJUDGED, AND DECREED, that the petition for review

14   is DISMISSED in part and DENIED in part.

15       Yao Di Chen and her daughter Yan Fang Dong, natives and

16   citizens of the People’s Republic of China, seek review of

17   the March 20, 2008, orders of the BIA, affirming the March

18   31, 2006, decision of Immigration Judge (“IJ”) Philip

19   Morace, which pretermitted their application for asylum, and

20   denied their application for withholding of removal and

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

22   Yao Di Chen, No. A099 083 366 (B.I.A. Mar. 20, 2008); In re

23   Yan Fang Dong, No. A099 083 367 (B.I.A. Mar. 20, 2008),

24   aff’g Nos. A099 083 366/367 (Immig. Ct. N.Y. City Mar. 31,

25   2006).   We assume the parties’ familiarity with the

26   underlying facts and procedural history in this case.

27


                                   2
1    A.   Asylum

2         As an initial matter, we lack jurisdiction to review

3    the IJ’s decision insofar as it pretermitted Petitioners’

4    untimely asylum application because they do not present a

5    constitutional claim or question of law with respect to that

6    finding.   See 8 U.S.C. § 1158(a)(3); Gui Yin Liu v. INS, 508

7    F.3d 716, 720-21 (2d Cir. 2007).   Accordingly, we dismiss

8    the petition for review to this extent.   We may, however,

9    review the agency’s denial of Petitioner Chen’s applications

10   for withholding of removal and CAT relief. 2   See Gui Yin

11   Liu, 508 F.3d at 721.

12   B.   Withholding of Removal and CAT

13        Under the circumstances of this case, we consider both

14   the IJ’s and the BIA’s opinions “for the sake of

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

16   2008) (quotation marks omitted).   The applicable standards



          2
           Although the BIA issued two decisions, addressing
     Chen and Dong’s application for relief individually, Chen
     was the lead applicant, while Dong was the derivative
     beneficiary included in Chen’s asylum application. A
     derivative applicant is entitled to asylum if the lead is
     granted that relief. See 8 U.S.C. § 1158(b)(3)(A); 8 C.F.R.
     § 1208.21. But there is no derivative benefit that attaches
     to a grant of withholding or CAT relief. See Wu Zheng Huang
     v. INS, 436 F.3d 89, 100-01 (2d Cir. 2006). Therefore, Chen
     is referred to as Petitioner for purposes of this Order.

                                   3
1    of review are well-established.     See Bah v. Mukasey, 529

2    F.3d 99, 110 (2d Cir. 2008).

3        Petitioner argues that she established her eligibility

4    for relief based on the past persecution she suffered for

5    violating the Chinese family planning policy.     Although the

6    IJ did not specifically mention the conditions Petitioner

7    faced in detention, he acknowledged that detention in his

8    summary of the facts of the case.     See Xiao Ji Chen v. U.S.

9    Dep’t of Justice, 315, 338 n.17 (2d Cir. 2006) (the IJ is

10   presumed to have considered all the evidence unless the

11   record “compellingly suggests otherwise”).     Nor do we find

12   error in the IJ’s determination that any harm Petitioner

13   endured while in detention did not rise to the level of

14   persecution.   See Ivanishvili v. U.S. Dep’t, 433 F.3d 332,

15   341 (2d Cir. 2006).    With respect to Petitioner’s argument

16   that she suffered past persecution based on her forced IUD

17   insertion and mandatory gynecological exams, because she

18   does not allege that these procedures were accompanied by

19   any “aggravating circumstances,” the IJ did not err in

20   finding that they did not constitute persecution.     See Xia

21   Fan Huang v. Holder, 591 F.3d 124, 128-30 (2d Cir. 2010).

22       Petitioner also argues that her case merits remand



                                    4
1    because this Court’s intervening decision in Jian Hui Shao

2    v. Mukasey, 546 F.3d 138 (2d Cir. 2008), clarified the

3    requirements of a claim based on a fear of sterilization.

4    But as the Government counters, the three-step analysis we

5    upheld in Jian Hui Shao, 546 F.3d at 170, was set out in the

6    BIA’s precedential decision, Matter of J-H-S-, 24 I. & N.

7    Dec. 196, 198-201 (BIA 2007), a decision issued before

8    Petitioner filed her appeal to the BIA.     Accordingly, she

9    was on notice that to prevail, she was required to make the

10   showing described in Matter of J-H-S-.     Moreover, as the

11   Government argues, Petitioner does not otherwise challenge

12   the agency’s determination that she did not show that she

13   would more likely than not face persecution if returned to

14   China, and has thus abandoned any such argument.     See Shunfu

15   Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).     Finally,

16   Petitioner does not challenge the agency’s denial of her CAT

17   claim.

18       For the foregoing reasons, the petition for review is

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

20   our review, any stay of removal that the Court previously

21   granted in this petition is VACATED, and any pending motion

22   for a stay of removal in this petition is DISMISSED as moot.

23   Any pending request for oral argument in this petition is
                                  5
1   DENIED in accordance with Federal Rule of Appellate

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

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk
5
6




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