Opinion
No. 08-0301-ag NAC.
November 3, 2008.
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.
FOR PETITIONER: John Z. Zhang, New York, New York. FOR RESPONDENT: Gregory G. Katsas, Acting Assistant Attorney General, Cindy S. Ferrier, Senior Litigation Counsel, Nairi M. Simonian, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.
PRESENT: HON. GUIDO CALABRESI, HON. SONIA SOTOMAYOR, HON. BARRINGTON D. PARKER, Circuit Judges.
Petitioner Neng Wen Chen, a native and citizen of the People's Republic of China, seeks review of the December 17, 2007 order of the BIA affirming the February 21, 2006 decision of Immigration Judge ("IJ") Vivienne Gordon-Uruakpa, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Neng Wen Chen, No. A76 280 481 (B.I.A. Dec. 17, 2007), aff'g No. A76 280 481 (Immig. Ct. N.Y. City Feb. 21, 2006). We assume the parties' familiarity with the underlying facts and procedural history of the case.
When the BIA issues an opinion that fully adopts the IJ's decision, we review the IJ's decision. See Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir. 2005). Moreover, when the BIA adopts the decision of the IJ and supplements the IJ's decision, 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). We review de novo questions of law and the application of law to undisputed fact. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003). We review the agency's factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir. 2007).
Because Chen's brief to this Court does not sufficiently challenge the agency's denial of CAT relief, we deem any such argument waived. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).
The agency found that Chen's asylum and withholding of removal claims lacked a nexus to a protected ground. Chen's only arguments before us are that he suffered past persecution and has a well-founded fear of persecution on account of his membership in a particular social group, as well as his own "resistance" to China's coercive population control program. However, he failed meaningfully to raise these arguments before the BIA. See Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007) (noting that "[t]o preserve an issue for judicial review, the petitioner must first raise it with specificity before the BIA"); see also Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). Although the government does not argue that the failure to exhaust should preclude our consideration of these issues, we decline to consider them. See Lin Zhong, 480 F.3d at 107 n. 1(b). In addition, because Chen fails to raise any challenge to the agency's finding that he fears prosecution instead of persecution, we deem any such argument waived. Yueqing Zhang, 426 F.3d at 545 n. 7.
We take no position on whether, had Chen raised his arguments before the BIA, they might have merit. Nor do we take a position on whether Chen was adequately represented by counsel before the BIA, see Matter of Lozada, 19 I. N. Dec. 637 (BIA 1988), and whether such putative inadequacy of representation might give rise to a reopening. Iavorski v. U.S. I.N.S., 232 F.3d 124 (2d Cir. 2000).
As Chen was unable to show the objective likelihood of persecution needed to establish eligibility for asylum, he was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (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. 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(b).