    08-1378-ag
    Lin v. Holder
                                                                                   BIA
                                                                              Ferris, IJ
                                                                          A075 968 295
                                                                          A098 776 209
                      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 22 nd day of January, two thousand ten.

    PRESENT:
                    JOHN M. WALKER, JR.,
                    ROBERT A. KATZMANN,
                    DEBRA ANN LIVINGSTON,
                             Circuit Judges.

    _________________________________________

    MIN LIN AND JIANWU WU,
             Petitioners,

                    v.                                       08-1378-ag
                                                             NAC
    ERIC H. HOLDER, JR., 1 UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _________________________________________

    FOR PETITIONERS:              John Chang, New York, N.Y.

    FOR RESPONDENT:               Gregory G. Katsas, Assistant
                                  Attorney General, Linda S. Wernery,
                                  Assistant Director, Lindsay B.
                                  Glauner, Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.


             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.
    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.

    Min Lin and Jianwu Wu, both natives and citizens of the

People’s Republic of China, seek review of the March 10,

2008 order of the BIA, affirming the October 16, 2006

decision of Immigration Judge (“IJ”) Noel A. Ferris, which:

(1) pretermitted Wu’s application for asylum; (2) denied

Lin’s application for asylum; and (3) denied both

petitioners’ applications for withholding of removal.     In re

Min Lin and Jianwu Wu, Nos. A075 968 295, A098 776 209

(B.I.A. Mar. 10, 2008), aff’g Nos. A075 968 295, A098 776

209 (Immig. Ct. N.Y. City Oct. 16, 2006).   We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

    Under the circumstances of this case, we review the

IJ’s decision as modified and supplemented by the BIA’s

decision, i.e., minus the arguments for denying relief that

the BIA rejected.   See Xue Hong Yang v. U.S. Dep’t of


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Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The applicable

standards of review are well-established.     See 8 U.S.C.

§ 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d

Cir. 2008); Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

    As a preliminary matter, in their brief, petitioners do

not challenge the agency’s decision to pretermit Wu’s

application for asylum.   In addition, petitioners do not

challenge the agency’s adverse credibility determination

with respect to Lin’s claim of past persecution.     Therefore,

the only issues remaining before us are whether the agency

erred in finding that petitioners do not have a well-founded

fear of future persecution based on the birth of their two

U.S. children, and whether the IJ violated their due process

rights.

    With respect to petitioners’ fear of forced

sterilization based on the birth of their children, we find

no error in the agency’s conclusion   that they failed to

demonstrate their eligibility for relief.     To establish

asylum eligibility based on a fear of future persecution, an

applicant must show that he or she subjectively fears

persecution and that this fear is objectively reasonable.

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

                              3
Petitioners’ arguments are based largely on evidence they

submitted on appeal to the BIA.    However, the BIA refused to

consider that evidence because it was not previously

unavailable.   See 8 C.F.R. § 1003.2(c).    Petitioners have

abandoned any challenge to the agency’s decision in that

respect because they do not argue in their brief before this

Court that the BIA abused its discretion by concluding that

petitioners failed to demonstrate that their evidence was

previously unavailable.    See Yueqing Zhang v. Gonzales, 426

F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).     As to the

evidence petitioners submitted before the IJ, we have

previously reviewed the agency’s consideration of similar

evidence and have found no error in its conclusion that it

is insufficient to establish an objectively reasonable fear

of persecution.   See Jian Hui Shao v. Mukasey, 546 F.3d 138,

156-65 (2d Cir. 2008).    Thus, the agency did not err in

finding that petitioners failed to establish eligibility for

relief based on the birth of their children.     Id.

    Finally, we find no merit in petitioners’ argument that

the IJ violated their due process rights.     Although we will

remand “when an IJ’s conduct results in the appearance of

bias or hostility such that we cannot conduct a meaningful

review of the decision below,” Islam v. Gonzales, 469 F.3d

                               4
53, 55 (2d Cir. 2006), the conduct Petitioners describe does

not rise to that level.   While we agree with the agency that

some of the IJ’s comments, particularly regarding the birth

of petitioners’ children and petitioners’ decision to send

their children to China, were “unduly critical in tone,” we

have reviewed the transcript of the proceedings and do not

find that these comments demonstrate such bias or hostility

that we cannot conduct a meaningful review.   See Francolino

v. Kuhlman, 365 F.3d 137, 143-44 (2d Cir. 2004)

(“‘[E]xpressions of impatience, dissatisfaction, annoyance,

and even anger, that are within the bounds of what imperfect

men and women . . . sometimes display’ do not establish bias

or partiality.”) (quoting Liteky v. United States, 510 U.S.

540, 555-56, 114 S. Ct. 1147, 127 L. Ed.2d 474 (1994)); see

also Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.

2003) (“Although the language used by the IJ during the

hearing . . . does reflect an annoyance and dissatisfaction

with Abdulrahman’s testimony that is far from commendable,

[it] do[es] not rise . . . to a violation of due process.”);

cf. Guo-Le Huang v. Gonzales, 453 F.3d 142, 148 (2d Cir.

2006) (ordering remand “because of the IJ’s apparent bias

and hostility toward” the petitioner).




                              5
    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

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

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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