ZHI YONG CHEN, also known as Chen Han Lin, Petitioner, v. Eric H. HOLDER Jr., United States Attorney General, Respondent, 374 F. App'x 109

SUMMARY ORDER 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 Hladylowyez denying petitioner’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Zhi Yong Chen, No. [ A XX XXX XXX ] (B.I.A. Mar. 4, 2008), aff'g No. [ A XX XXX XXX ] (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). 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 canie 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 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).

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. .

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.