         09-2466-ag
         Tang v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A094 046 391
                           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 1 st day of April, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                         Chief Judge,
 9                GUIDO CALABRESI,
10                DEBRA ANN LIVINGSTON,
11                         Circuit Judges.
12       _______________________________________
13
14       LANYING TANG,
15                Petitioner,
16
17                        v.                                    09-2466-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Dehai Zhang, Flushing, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Terri J. Scadron, Assistant
28                                     Director; Heather S. Navarro, Law
29                                     Clerk, Office of Immigration
30                                     Litigation, United States Department
31                                     of Justice, 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 DISMISSED in part.

5        Lanying Tang, a native and citizen of the People’s

6    Republic of China, seeks review of a May 19, 2009, order of

7    the BIA affirming the July 10, 2007, decision of Immigration

8    Judge (“IJ”) Sandy Hom, which pretermitted her application

9    for asylum, and denied her application for withholding of

10   removal and relief under the Convention Against Torture

11   (“CAT”).   In re Lanying Tang, No. A094 046 391 (B.I.A. May

12   19, 2009), aff’g No.   A094 046 391    (Immig. Ct. N.Y. City

13   July 10, 2007).   We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       “Where the BIA adopts the decision of the IJ and merely

16   supplements the IJ’s decision . . . we review the decision

17   of the IJ as supplemented by the BIA.” Yan Chen v. Gonzales,

18   417 F.3d 268, 271 (2d Cir. 2005).     However, when the BIA

19   affirms the IJ’s decision in some respects but not others,

20   we review the IJ’s decision as modified by the BIA’s

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

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



                                   2
1    Justice, 426 F.3d 520, 522 (2d Cir. 2005). Here, the BIA’s

2    decision focused on the IJ’s holding that Tang failed to

3    meet her burden of proof, making it unclear whether the BIA

4    agreed with the IJ’s alternative adverse credibility

5    determination.   Under these circumstances, we dispose of

6    Tang’s case on burden of proof grounds and “assume, but do

7    not determine” her credibility for purposes of our analysis.

8    Yan Chen, 417 F.3d at 271.     The applicable standards of

9    review are well-established.     See 8 U.S.C.

10   § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

11   162, 165-66 (2d Cir. 2008) ; Manzur v. U.S. Dep’t of Homeland

12   Sec., 494 F.3d 281, 289 (2d Cir. 2007).

13   I.   Asylum

14        We dismiss the petition for review in part because we

15   lack jurisdiction to consider Tang’s challenge to the

16   agency’s pretermission of her untimely asylum application.

17   See 8 U.S.C. § 1158(a)(3) (explaining that no court shall

18   have jurisdiction to review any determination of the

19   Attorney General regarding the timeliness of an asylum

20   application under section 1158(a)(2)(B)).       Although we

21   retain jurisdiction to review constitutional claims and

22   questions of law, 8 U.S.C. § 1252(a)(2)(D), Tang raises no


                                     3
1    such argument, essentially disputing the IJ’s factual

2    determination that she failed to demonstrate “extraordinary

3    circumstances.”   See 8 U.S.C. § 1158(a)(3).

4    II.   Withholding of Removal

5          With respect to Tang’s application for withholding of

6    removal, we find that substantial evidence supports the

7    agency’s finding that she failed to meet her burden of

8    proof.   The agency reasonably found that Tang failed to

9    corroborate her claim that she had been forced to have an

10   abortion.   See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d

11   391, 401 (2d Cir. 2005) (finding that although an applicant

12   can in some cases satisfy his burden of proof with his own

13   testimony, “where the circumstances indicate that an

14   applicant has, or with reasonable effort could gain, access

15   to relevant corroborating evidence, his failure to produce

16   such evidence in support of his claim is a factor that may

17   be weighed in considering whether he has satisfied the

18   burden of proof” (internal quotation marks omitted)); see

19   also 8 U.S.C. § 1231(b)(3)(C).     Moreover, the agency

20   reasonably determined that Tang failed to establish a clear

21   probability of future persecution based on any hypothetical

22   future resistance to the population control policy.       See 8


                                    4
1    C.F.R. § 1208.16(b)(2) ; see also Jian Xing Huang v. INS, 421

2    F.3d 125, 129 (2d Cir. 2005).

3        Substantial evidence also supports the agency’s finding

4    that Tang was ineligible for relief based on her labor union

5    activities.     We find no error in the IJ’s determination that

6    Tang’s three-day detention and 3,000 RMB fine do not rise to

7    the level of persecution under the INA.     See Ivanishvili v.

8    U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)

9    (explaining that the difference between harassment and

10   persecution is “necessarily one of degree that must be

11   decided on a case-by-case basis” ); see also Joaquin-Porras

12   v. Gonzales, 435 F.3d 172, 182 (2d Cir. 2006) (upholding

13   agency’s determination that applicant was not eligible for

14   withholding of removal based on “brief” detention after

15   which he was released “without harm”) .    Nor did the agency

16   err in concluding that Tang did not show a likelihood of

17   future persecution based on her labor union activities

18   because she “did not continue her union activities after

19   being detained on one occasion,” and did not show “that the

20   Chinese authorities have continued to monitor her or her

21   husband and son, who remain in China.”     Absent any such

22   showing, we agree that Tang’s claim was too speculative to

23   merit relief.      See Jian Xing Huang, 421 F.3d at 129.
                                      5
1        Finally, Tang does not challenge the agency’s denial of

2    her CAT claim before this Court. Because addressing that

3    claim does not appear to be necessary to avoid manifest

4    injustice, we deem it waived.       See Yueqing Zhang v.

5    Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

6        For the foregoing reasons, the petition for review is

7    DENIED in part and DISMISSED in part.       As we have completed

8    our review, any stay of removal that the Court previously

9    granted in this petition is VACATED, and any pending motion

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

11   Any pending request for oral argument in this petition is

12   DENIED in accordance with Federal Rule of Appellate

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

14                              FOR THE COURT:
15                              Catherine O’Hagan Wolfe, Clerk
16
17
18




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