    08-1479-ag
    Chen v. Holder
                                                                                   BIA
                                                                         Hladylowycz, IJ
                                                                           A72-484-380
                      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 29 th day of March, two thousand ten.

    PRESENT:
              ROSEMARY S. POOLER,
              ROBERT D. SACK,
              DEBRA ANN LIVINGSTON,
                           Circuit Judges.
    _____________________________________

    ZHI YONG CHEN, ALSO KNOWN AS CHEN
    HAN LIN,
             Petitioner,
                     v.                                    08-1479-ag
                                                           NAC
    ERIC H. HOLDER JR., UNITED STATES
    ATTORNEY GENERAL, 1
             Respondent.
    ______________________________________
    FOR PETITIONER:        Waisim M. Cheung, New York, New
                           York.




             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.
FOR RESPONDENT:           Gregory G. Katsas, Assistant
                          Attorney General, Civil Division,
                          Carl H. McIntyre, Jr., Assistant
                          Director, Francis W. Fraser, Senior
                          Litigation Counsel, Office of
                          Immigration Litigation, United
                          States Department of Justice, Civil
                          Division, 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, Zhi Yong Chen, a native and citizen of the

People’s Republic of China, seeks review of a March 4, 2008

order of the BIA dismissing his appeal of the March 18, 2004

decision of Immigration Judge (“IJ”) Roxanne Hladylowycz

denying petitioner’s applications for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”).     In re Zhi Yong Chen, No. A 72 484 380 (B.I.A. Mar.

4, 2008), aff’g No. A 72 484 380 (Immig. Ct. N.Y. City Mar.

18, 2004).     We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

    When the BIA does not adopt the decision of the IJ to

any extent, this Court reviews only the decision of the BIA.

See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).


                                2
This Court reviews the agency’s factual findings, including

adverse credibility determinations, under the substantial

evidence standard.     8 U.S.C. § 1252(b)(4)(B); see also

Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 289 (2d

Cir. 2007).    We review de novo questions of law and the

application of law to undisputed fact.     See, e.g., Salimatou

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

    To the extent that Chen continues to assert that he may

be eligible for relief based on his wife’s forced abortion,

this Court has squarely rejected the notion that aliens are

per se eligible for relief based on the forced sterilization

of their spouse.     Shi Liang Lin v. U.S. Dep’t of Justice,

494 F.3d 296, 309 (2d Cir. 2007).     Before this Court, Chen

argues primarily that he established eligibility for relief

based on his resistance to China’s family planning policy

when he had a confrontation with the officials who came to

take his wife to be forcibly aborted.     This argument is

unexhausted.    The IJ explicitly found that Chen failed to

establish eligibility for relief based on any resistance to

China’s family planning policy where he did not assert that

anything happened to him as a result of his alleged

altercation with family planning officials.     Because Chen


                                3
failed to challenge that finding before the BIA, we decline

to consider it in the first instance.    See Lin Zhong v. U.S.

Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007)

(holding that petitioners must raise to the BIA the specific

issues they later raise in this Court). 2

    Because Chen was unable to show the objective

likelihood of persecution needed to make out an asylum

claim, Shi Liang Lin, 494 F.3d at 309, he was necessarily

unable to meet the higher standard required to succeed on

his claims for withholding of removal and CAT relief where

they are based on the same factual predicate.     See Paul v.

Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




    2
       To the extent Chen asserts that his case should be
remanded to allow the agency to consider his other resistance
claim in light of this Court’s ruling in Shi Liang Lin, we
decline to do so. A claim based on resistance to a coercive
family planning policy existed as a basis for relief when Chen
filed his application for relief, 8 U.S.C. § 1101(a)(42), and
nothing in our decision in Shi Liang Lin impacts such
claims. As noted, the IJ rejected Chen’s claim based on his
alleged resistance. He cannot now avoid the consequences of his
failure to exhaust that claim before the BIA.

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