    10-1542-ag
    Dong v. Holder
                                                                                   BIA
                                                                              Ferris, IJ
                                                                          A200 026 025
                      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 13th day of April, two thousand twelve.

    PRESENT:
             RALPH K. WINTER,
             ROBERT A. KATZMANN,
             DEBRA ANN LIVINGSTON,
                 Circuit Judges.
    _____________________________________

    LIMING DONG, AKA LI MING DONG,
             Petitioner,

                     v.                                    10-1542-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Theodore N. Cox, New York, N.Y.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Thomas B. Fatouros, Senior
                                  Litigation Counsel; Robert Michael
                                  Stalzer, Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
    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.

    Petitioner Liming Dong, a native and citizen of the

People’s Republic of China, seeks review of a final removal

order issued by the BIA on March 26, 2010.   The BIA’s order

affirmed the August 13, 2008 decision of Immigration Judge

(“IJ”) Noel Ferris, which denied petitioner’s application

for asylum and withholding of removal.   See In re Liming

Dong, No. A200 026 025 (B.I.A. Mar. 26, 2010), aff’g No.

A200 026 025 (Immig. Ct. N.Y. City Aug. 13, 2008).   We

assume the parties’ familiarity with the underlying facts

and procedural history.

    Because the BIA’s brief opinion closely tracks the

reasoning of the IJ’s decision, this Court may consider both

the IJ's and the BIA's opinions "for the sake of

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

2008) (per curiam).   The "substantial evidence" standard of

review applies, Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

Cir. 2009), and we uphold the IJ's factual findings if they

are supported by "reasonable, substantial and probative

evidence in the record," Lin Zhong v. U.S. Dep't of Justice,

                              2
480 F.3d 104, 116 (2d Cir. 2007) (internal quotation marks

omitted).    However, “we review de novo questions of law and

the BIA's application of law to undisputed fact."     Yanqin

Weng, 562 F.3d at 513 (internal quotation marks and brackets

omitted).    Finally, in reviewing the decision of the BIA, we

assume, but do not determine, the credibility of Dong’s

testimony.    See Yan Chen v. Gonzales, 417 F.3d 268, 271-72

(2d Cir. 2005).

    This Court has determined that Section 601(a) of the

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 ("IIRIRA") does not provide that a spouse of someone

who has been forced to undergo an abortion is automatically

eligible for "refugee" status.     Shi Liang Lin v. U.S. Dep’t

of Justice, 494 F.3d 296, 310 (2d Cir. 2007).    Instead,

“such an individual must turn to the two remaining

categories of § 601(a), which provide protection to

petitioners who demonstrate ‘other resistance to a coercive

population control program’ or ‘a well founded fear that he

or she will be . . . subject to persecution for such . . .

resistance . . . .’"    Id. (quoting 8 U.S.C. § 1101(a)(42)).

Because Dong does not challenge the agency's finding that he

failed to establish a well-founded fear of persecution, the


                               3
relevant question is whether Dong established persecution

based on “other resistance.”   To make this showing, an

applicant must demonstrate (1) “resistance” to a coercive

family planning policy, which can “cover[] a wide range of

circumstances, including expressions of general opposition,

attempts to interfere with enforcement of government policy

in particular cases, and other overt forms of resistance to

the requirements of the family planning law”; and (2) that

the applicant “has suffered harm amounting to persecution on

account of that resistance.”   Id. at 313 (citing In re S-L-

L-, 24 I. & N. Dec. 1, 10 (B.I.A. 2006)).

    Dong argues that he resisted the family planning policy

by paying a doctor to have his wife’s IUD removed, helping

his wife hide while she was pregnant, hiding himself, and

refusing to pay a 5,000 RMB fine.   However, even assuming

that Dong’s activities constituted “other resistance,” see

Matter of M-F-W- & L-G-, 24 I. & N. Dec. 633, 638 (B.I.A.

2008), Dong failed to show that he suffered harm amounting

to persecution on account of that resistance.   See Shi Liang

Lin, 494 F.3d at 313.   Dong’s central argument –- that the

psychological harm he suffered as a result of the

involuntary abortion performed on his wife constitutes past


                               4
persecution –- is unavailing.       The term "persecution"

contemplates that “harm or suffering must be inflicted upon

an individual in order to punish him for possessing a belief

or characteristic a persecutor seeks to overcome.”       Matter

of Acosta, 19 I. & N. Dec. 211, 223 (B.I.A. 1985) overruled

in part on other grounds by Matter of Mogharrabi, 19 I. & N.

Dec. 439, 441 (B.I.A. 1987).    Dong presented no evidence

that the family planning officials were even aware of his

alleged resistance to the family planning policy, and thus

did not show that the family planning officials who caused

him emotional distress by performing a forcible abortion on

his wife “were in part motivated by an assumption that his

political views were antithetical to those of the

Government.”     In re S-P-, 21 I. & N. Dec. 486, 492, 496

(B.I.A. 1996).    Accordingly, the BIA did not err in finding

that Dong failed to demonstrate past persecution on account

of a protected ground.     See Tao Jiang v. Gonzales, 500 F.3d

137, 142 (2d Cir. 2007) (requiring evidence that a political

opinion was imputed to family member of victim of forcible

sterilization in order to establish nexus); Mei Fun Wong v.

Holder, 633 F.3d 64, 79 (2d Cir. 2011) (recognizing the

requirement of a nexus between the harm and the applicant’s

“other resistance”).
                                5
    Dong also argues that the BIA erred by failing to

consider the evidence of his emotional suffering.    This

argument is without merit, as it is clear that the BIA

considered the totality of the evidence, including a

psychologist’s report of Dong’s major depressive disorder,

in rendering its decision.   See Xiao Ji Chen v. U.S. Dep’t

of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006).     Finally,

because Dong did not exhaust his administrative remedies as

to withholding of removal, we lack jurisdiction to review

the denial of this form of relief.   See Karaj v. Gonzales,

462 F.3d 113, 119 (2d Cir. 2006).

    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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