No. 09-0083-ag.United States Court of Appeals, Second Circuit.
July 30, 2010.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED in part and DISMISSED in part.
David Z. Su, Monterey Park, CA, for Petitioner.
Tony West, Assistant Attorney General, Anthony P. Nicastro, Senior Litigation Counsel, Joanna L. Watson, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department, of Justice, Washington, D.C., for Respondent.
Present: REENA RAGGI, RICHARD C. WESLEY and GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Petitioner Lin Jian Weng, a native and citizen of the People’s Republic of China, seeks review of a December 10, 2008, order of the BIA affirming the April 4, 2007, decision of Immigration Judge (“IJ”) Robert Weisel, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Weng, No. A029 795 078 (B.I.A. Dec. 10, 2008), aff’g No. A029 795 078 (Immig. Ct. N.Y. City Apr. 4, 2007).
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We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Under the circumstances of this case, we review the IJ’s decision as modified by the BIA decision. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B) Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Because Weng waived any challenge to the IJ’s finding that he failed to establish past persecution, he was not entitled to a presumption of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1). Absent past persecution, an applicant may establish eligibility for asylum by showing that he subjectively fears persecution on account of an enumerated ground and that his fear is objectively reasonable. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). The BIA did not err in finding that Weng failed to establish a well-founded fear of persecution based on either: (1) his physical altercation with family planning officials over twenty years ago; or (2) the birth of his two U.S. citizen children. See Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).
With regard to Weng’s claim based on his physical altercation with family planning officials, as the BIA found, the record is devoid of any evidence indicating that Chinese officials would seek out petitioner. Weng does not dispute that finding, waiving any such argument. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005). Thus, we will not disturb the BIA’s decision in this respect.
Furthermore, the BIA reasonably found that Weng failed to demonstrate a well-founded fear of persecution based on the birth of his two U.S. citizen children. As the BIA observed, the evidence Weng submitted was similar to, but less extensive than, that addressed in Matter of J-W-S, 24 I. N. Dec. 185 (BIA 2007). We have previously reviewed, and found no error in, the BIA’s analysis in that case. Man Hui Shoo v. Mukasey, 546 F.3d 138 (2d Cir. 2008). Moreover, contrary to Weng’s argument, the IJ reasonably discounted Weng’s testimony concerning the alleged forced sterilization of a “fellow villager.” See id. at 160 (holding that BIA reasonably concluded that conclusory “unattributed `reports'” do not, by themselves, demonstrate reasonable possibility of future persecution).
Accordingly, the record supports the agency’s determination that Weng was not eligible for asylum. 8 U.S.C. § 1252(b)(4)(B); see Corovic, 519 F.3d at 95. We lack jurisdiction to consider Weng’s unexhausted challenge to the IJ’s denial of his request for withholding of removal and CAT relief and dismiss the petition for review to that extent See 8 U.S.C. § 1252(d)(1).
For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part. 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).
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