         07-2958-ag
         Dong v. Holder
                                                                                        BIA
                                                                                 Bukszpan, IJ
                                                                                A078 840 543
                                                                                A098 582 554
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 19 th day of November, two thousand                nine.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                       Chief Judge,
 9                JON. O. NEWMAN,
10                PIERRE N. LEVAL,
11                       Circuit Judges.
12       _________________________________________
13
14       XUE MEI DONG, QIN YAO ZHENG,
15                Petitioners,
16
17                          v.                                  07-2958-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., * UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _________________________________________


                        *
                 Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr. is
         automatically substituted for former Attorney General
         Alberto R. Gonzales as respondent in this case.
         0 9 1 4 0 9 -3 2
 1   FOR PETITIONERS:          Gary J. Yerman, New York, New York.
 2
 3   FOR RESPONDENT:           Gregory G. Katsas, Assistant
 4                             Attorney General; M. Jocelyn Lopez
 5                             Wright; Assistant Director; Jonathan
 6                             Robbins, Attorney, Office of
 7                             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 DENIED.

15       Xue Mei Dong and Qin Yao Zheng, natives and citizens of

16   the People’s Republic of China, seek review of a June 22,

17   2007 order of the BIA, affirming the November 7, 2005

18   decision of Immigration Judge (“IJ”) Joanna Miller Bukszpan,

19   which denied their applications for asylum, withholding of

20   removal, and relief under the Convention Against Torture

21   (“CAT”).     In re Xue Mei Dong, Qin Yao Zheng, No. A078 840

22   543, A098 582 554 (B.I.A. Jun. 22, 2007), aff’g No. A078 840

23   543, A098 582 554 (Immig. Ct. N.Y. City Nov. 7, 2005).     We

24   assume the parties’ familiarity with the underlying facts

25   and procedural history in this case.

26       When the BIA affirms the IJ’s decision in all respects

27   but one, we review the IJ’s decision as modified by the BIA


                                     2
1    decision, i.e., “minus the single argument for denying

2    relief that was rejected by the BIA.”    Xue Hong Yang v. U.S.

3    Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).     We

4    review the agency’s factual findings under the substantial

5    evidence standard.    8 U.S.C. § 1252(b)(4)(B); see also

6    Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).     We

7    review de novo questions of law and the application of law

8    to undisputed fact.    Salimatou Bah v. Mukasey, 529 F.3d 99,

9    110 (2d Cir. 2008).

10       Petitioners argue that the BIA erred in concluding that

11   they failed to demonstrate their eligibility for relief from

12   removal based on the birth of their U.S. citizen children.

13   However, this argument fails because we have previously

14   reviewed the BIA’s consideration of evidence similar to that

15   which petitioners presented and have found no error in its

16   conclusion that such evidence is insufficient to establish

17   an objectively reasonable fear of persecution.    See Jian Hui

18   Shao v. Mukasey, 546 F.3d 138, 156-68 (2d Cir. 2008).

19   Moreover, petitioners failed to demonstrate their

20   eligibility for CAT relief based on their illegal departure

21   from China because they are not “entitled to CAT protection

22   based solely on the fact that [they are] part of the large


                                    3
1    class of persons who have illegally departed China,” Mu

2    Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d

3    Cir. 2005), and they failed to provide the particularized

4    evidence necessary to demonstrate their eligibility for such

5    relief, see Pierre v. Gonzales, 502 F.3d 109, 118-19 (2d

6    Cir. 2007).

7        In addition, we do not find that the BIA erred in

8    noting that petitioners’ children have U.S. passports, have

9    been residing in China, and have not suffered any harm in

10   China because, contrary to petitioners’ argument, the BIA

11   did not rely on such facts to find them not credible as to

12   their subjective fear of returning to China.   Cf. Uwais v.

13   U.S. Att’y General, 478 F.3d 513, 518-19 (2d Cir. 2007)

14   (finding that the BIA erred in relying on petitioner’s

15   child’s trip to Sri Lanka to find petitioner’s claimed fear

16   of returning to Sri Lanka not plausible).   Additionally, we

17   need not review the IJ’s discretionary denial of

18   petitioners’ application for asylum because the BIA

19   explicitly declined to review that determination.     See Xue

20   Hong Yang, 426 F.3d at 522.

21       For the foregoing reasons, the petition for review is

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


                                   4
1    removal that the Court previously granted in this petition

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

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

4    oral argument in this petition is DENIED in accordance with

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

6    Circuit Local Rule 34(b).

 7                               FOR THE COURT:
 8                               Catherine O’Hagan Wolfe, Clerk
 9
10
11                               By:___________________________




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