         10-1916-ag
         Zheng v. Holder
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A088 372 034
                                                                               A088 372 035
                             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 22nd day of March, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROSEMARY S. POOLER,
10                DEBRA ANN LIVINGSTON,
11                     Circuit Judges.
12       _______________________________________
13
14       LISHAUNG ZHENG, HAI BING SHEN,
15
16                         Petitioners,
17
18                         v.                                   10-1916-ag
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       ______________________________________
24
25       FOR PETITIONERS:           Scott E. Bratton, Cleveland, Ohio.
26
27       FOR RESPONDENT:            Tony West, Assistant Attorney General;
28                                  Luis E. Perez, Senior Litigation Counsel;
29                                  John B. Holt, Trial Attorney, Office of
30                                  Immigration Litigation, Civil Division,
31                                  United States Department of Justice,
32                                  Washington, D.C.
 1        UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED, in part, and GRANTED, in part.

 5        Petitioners Lishaung Zheng and Hai Bing Shen, natives

 6   and citizens of China, seek review of an April 16, 2010,

 7   order of the BIA affirming the May 20, 2008, decision of

 8   Immigration Judge (“IJ”) Gabriel C. Videla denying their

 9   application for asylum, withholding of removal, and relief

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

11   Lishaung Zheng, Hai Bing Shen, Nos. A088 372 034 (B.I.A.

12   April 16, 2010), aff’g No. A088 372 035 (Immig. Ct. N.Y.

13   City May 20, 2008).   We assume the parties’ familiarity with

14   the underlying facts and procedural history in this case.

15        Under the circumstances of this case, we have reviewed

16   both the IJ’s decision and the BIA’s decision.    See Yan Chen

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

18   applicable standards of review are well-established.     See 8

19   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

20   513 (2d Cir. 2009).

21   I.   Forced Sterilization

22        Petitioners’ argument that the BIA erred in finding

23   that Petitioner Zheng failed to establish a well-founded

24   fear of future persecution based on the births of her two

                                   2
 1   children is foreclosed by this Court’s decision in Jian Hui

 2   Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008).     Contrary to

 3   Petitioners’ assertions, the village committee notice they

 4   submitted was not material to their claim because it merely

 5   referenced the family planning policy’s sterilization policy

 6   without indicating that sterilizations are performed by

 7   force.   See id. at 165, 172.   Moreover, the letters from

 8   Petitioners’ friends claiming that they were forcibly

 9   sterilized following the birth of their children in China

10   were not material because they did not discuss the forced

11   sterilization of similarly situated individuals, i.e.,

12   Chinese nationals returning to China with children born in

13   the United States.   See id. at 160-61, 170-71.

14       Because Petitioners failed to raise their argument that

15   they would face fines amounting to economic persecution on

16   account of the birth of their children on appeal to the BIA,

17   and because the government has raised this failure to

18   exhaust in its brief to this Court, we decline to consider

19   the issue.   See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

20   104, 119-20 (2d Cir. 2007); see also Foster v. INS, 376 F.3d

21   75, 78 (2d Cir. 2004)

22



                                     3
 1   II. Forcible IUD Insertion

 2        We nevertheless remand this case so that the BIA may

 3   clarify its determination that Lead Petitioner Zheng did not

 4   establish that she suffered past persecution based on the

 5   alleged forced insertion of an intrauterine device (“IUD”).

 6        To establish past persecution based on the forcible

 7   insertion of an IUD, an asylum applicant must establish

 8   that: (1) the IUD was inserted because of her resistance to

 9   a family planning policy, or another protected ground,

10   rather than as a routine part of the population control

11   program; and (2) there were “aggravating circumstances.”

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

13   (according Chevron deference to the BIA’s decision in Matter

14   of M-F-W- & L-G-, 24 I. & N. Dec. 633 (BIA 2008)).

15        In Mei Fun Wong v. Holder, 633 F.3d 64 (2d Cir. 2011),

16   we   remanded for the agency to articulate, inter alia,

17   standards for determining whether an asylum applicant has

18   established aggravating circumstances in connection with the

19   forcible insertion of an IUD.       See id. at 71-81.   For the

20   reasons discussed in Mei Fun Wong, we cannot evaluate the

21   BIA’s determination that Zheng did not establish such

22   circumstances here.   See id.


                                     4
 1       Zheng asserts that she established aggravating

 2   circumstances based on the family planning officials’

 3   threats that she would be sterilized if she refused to

 4   undergo the IUD insertion.   As in Mei Fun Wong, “we cannot

 5   review the Board’s decision that [this alleged mistreatment

 6   did not constitute aggravating circumstances] without a

 7   clearer understanding of how [the BIA] weighed the [IUD

 8   insertion] itself consistent with its obligation to consider

 9   all alleged harms cumulatively.”     Id. at 77.   This is

10   especially true in light of our pronouncement that “threats”

11   may be sufficient to demonstrate aggravating circumstances

12   that “elevate a routine practice to the level of

13   persecution.”   Id. at 80.

14       We note that even when aggravating circumstances are

15   present in connection with a forcible IUD insertion, an

16   asylum applicant must also establish that the IUD was

17   inserted because of her resistance to a family planning

18   policy, or on account of another protected ground.      See Xia

19   Fan Huang, 591 F.3d at 128-29.     Here, Zheng argues that her

20   removal of the IUD without permission - an act subsequent to

21   the alleged forcible insertion of the IUD - constitutes

22   “resistance” without explaining how this later-in-time act


                                   5
 1   constituted resistance or could have resulted in the

 2   persecution she alleges.   The BIA, however, only considered

 3   whether Zheng had established “aggravating circumstances,”

 4   and did not reach the question whether any harm she suffered

 5   was because of her resistance to the family planning policy.

 6   As we may affirm the BIA’s denial of relief only on the

 7   basis articulated in its decision, see Anderson v. McElroy,

 8   953 F.2d 803, 806 (2d Cir. 1992), we remand, but we do so

 9   without prejudice to any further consideration by the BIA of

10   the issue whether the persecution allegedly suffered by

11   Zheng was “because of” her alleged resistance to the family

12   planning policy.

13       For the foregoing reasons, the petition for review is

14   DENIED, in part, and GRANTED, in part, the order of removal

15   is VACATED, and the case is REMANDED to the BIA for

16   proceedings consistent with this decision.   Any pending

17   request for oral argument in this petition is DENIED in

18   accordance with Federal Rule of Appellate Procedure

19   34(a)(2), and Second Circuit Local Rule 34.1(b).

20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22




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