         11-3812                                                                        BIA
         Dong v. Holder                                                       Hladylowycz, IJ
                                                                                A075 776 847



                           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 23rd day of July, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                RICHARD C. WESLEY,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       XING AN DONG, AKA XING EN DONG,
14                Petitioner,
15
16                        v.                                    11-3812
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Jan Allen Reiner, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Blair O’Connor,
27                                     Assistant Director; R. Alexander
28                                     Goring, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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.

 5       Petitioner Xing An Dong, a native and citizen of China,

 6   seeks review of an August 25, 2011, reissued decision of the

 7   BIA, affirming an Immigration Judge’s March 3, 1999 denial

 8   of asylum and withholding of removal.   In re Xing An Dong,

 9   No. A075 776 847 (B.I.A. Aug. 25, 2011), aff’g No. A075 776

10   847 (Immig. Ct. N.Y. City Mar. 3, 1999).     We assume the

11   parties’ familiarity with the underlying facts and

12   procedural history in this case.

13       Under the circumstances of this case, we have reviewed

14   the IJ’s decision as the final agency determination.     See

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

16   applicable standards of review are well established.     See 8

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

18   513 (2d Cir. 2009).

19       Even assuming that Dong was credible, the agency did

20   not err in finding that he failed to demonstrate a

21   well-founded fear of persecution in China.     See Jian Xing

22   Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005).     As the


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 1   agency reasonably noted, Dong failed to show that any of his

 2   neighbors suffered harm for their role in the January 1998

 3   altercation with family planning officers.     See Melgar de

 4   Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).    Indeed,

 5   Dong failed to offer any evidence showing that authorities

 6   sought him following the issuance of his summons in April

 7   1998 or had any continued interest in him.

 8       Moreover, the agency did not err in according

 9   diminished weight to Dong’s summons because it was not

10   authenticated by any means.   See Xiao Ji Chen v. U.S. Dep’t

11   of Justice, 471 F.3d 315, 329 (2d Cir. 2006).    The agency

12   also reasonably concluded that Dong’s summons, which merely

13   directed him to report to the local precinct for

14   questioning, was entitled to minimal weight because it did

15   not indicate the purpose of the questioning.     See Jian Xing

16   Huang, 421 F.3d at 128-29; Xiao Ji Chen, 471 F.3d at 329.

17   Under these circumstances, the agency did not err in

18   concluding that Dong failed to establish a well-founded fear

19   of persecution.

20       As Dong failed to meet his burden for asylum, he

21   necessarily failed to meet the higher burden required to

22   succeed on a claim for withholding of removal.     See Gomez v.


                                   3
 1   INS, 947 F.2d 660, 665 (2d Cir. 1991).    Although Dong also

 2   argues that he established his eligibility for relief under

 3   the Convention Against Torture (“CAT”), Dong filed his

 4   application prior to the effective date of CAT’s

 5   implementing legislation and did not subsequently assert a

 6   claim for CAT relief before the agency.

 7       Because the agency did not err in finding that Dong

 8   failed to establish his eligibility for asylum and

 9   withholding of removal, we decline to consider his

10   challenges to the agency’s alternative basis for denial –

11   that he was not credible.     See INS v. Bagamasbad, 429 U.S.

12   24, 25 (1976) (per curiam).    Even assuming error in the

13   agency’s adverse credibility determination, given the

14   agency’s reasonable alternative burden finding, remand of

15   these proceedings would be futile.     See Cao He Lin v. U.S.

16   Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005).

17       For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

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

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

22   oral argument in this petition is DENIED in accordance with


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

2   Circuit Local Rule 34.1(b).

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




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