Liming Dong v. Holder

SUMMARY ORDER 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 *783 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, 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 resis-tance_’” 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 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 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 al *784 leged 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”). 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.