Opinion
No. 09-2291-ag.
June 1, 2010.
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.
Richard Tarzia, Belle Mead, NJ, for Petitioner.
Tony West, Assistant Attorney General, Linda Wernery, Assistant Director, Trish Maskew, Attorney, Office of Immigration litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: JON O. NEWMAN, ROBERT D. SACK, REENA RAGGI, Circuit Judges.
SUMMARY ORDER
Petitioner Xu Hui Dong, a native and citizen of China, seeks review of a May 4, 2009, order of the BIA affirming the September 19, 2007, decision of Immigration Judge ("IJ") Sandy K. Horn denying his application for asylum, withholding of removal, and relief under the Convention against Torture, In re Xu Hui Dong, No. A094 927 297 (B.IA. May 4, 2009), aff'g No. A094 927 297 (Immig. Ct. N.Y. City Sept. 19, 2007). We assume the parties' familiarity with the underlying facts and procedural history in this case.
Under the circumstances of this case, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of review are well-established. See § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99,110 (2d Cir. 2008).
Dong does not contest the agency's finding that he is not per se eligible for relief based on his wife's forced sterilization. See Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 309-310 (2d Cir. 2007); Matter of J-S-, 24 I. N. Dec. 520 (AG 2008). Rather, Dong argues that he was eligible for relief because he was "not . . . allowed to enjoy the basic human right of procreating with his wife." This argument too is foreclosed by Shi Liang Lin. See 494 F.3d at 309-310 ("We do not deny that an individual whose spouse undergoes, or is threatened with, a forced abortion, or involuntary sterilization may suffer a pro-found emotional loss as a partner and a potential parent. But such a loss does not change the requirement that we must follow the `ordinary meaning' of the language chosen by Congress, according to which an individual does not automatically qualify for `refugee' status on account of a coercive procedure performed on someone else.").
Moreover, the BIA reasonably found that Dong failed to demonstrate that the fine imposed upon him by family planning officials constituted persecution because, as the BIA noted, he offered neither testimony nor evidence regarding the fine. See Matter of T-Z-, 24 I. N. Dec. 163, 170-75 (BIA 2007); Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that "[i]n the absence of solid support in the record for [an applicant's] assertion that he will be [persecuted], his fear is speculative at best"); Guan Shan Liao v. U.S. Dep't of Justice, 293 F.3d 61, 68 (2d Cir. 2002) (finding that an absence of evidence of applicant's net worth or other information necessary to evaluate his financial circumstances, precluded a finding of economic persecution). Because Dong established neither past persecution nor a well-founded fear of future persecution, the agency reasonably denied his application for asylum. See 8 U.S.C. § 1101(a)(42). Dong does not challenge the denial of either his application for withholding of removal or his illegal departure claim.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).