09-5213-ag
Yong v. Holder
BIA
Weisel, IJ
A98 901 817
A96 695 846
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 17th day of November, two thousand ten.
PRESENT:
JON O. NEWMAN,
GUIDO CALABRESI,
ROBERT A. KATZMANN,
Circuit Judges.
_______________________________________
KIM SENG YONG, LEE KUAN CHOONG,
Petitioners,
v. 09-5213-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONERS: Edward J. Cuccia, Ferro & Cuccia, New
York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Jennifer Levings, Senior Litigation
Counsel; Nancy K. Canter, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
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.
Kim Seng Yong and Lee Kuan Choong, natives and citizens
of Malaysia, seek review of a November 20, 2009, decision of
the BIA affirming the July 9, 2008, decision of Immigration
Judge (“IJ”) Robert D. Weisel, which denied their applications
for withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Kim Seng Yong, Lee Kuan
Choong, Nos. A098 901 817, A096 695 846 (B.I.A. Nov. 20,
2009), aff’g Nos. A098 901 817, A096 695 846 (Immig. Ct. N.Y.
City July 9, 2008). 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 8 U.S.C.
§ 1252(b)(4)(B); see also Salimatou Bah v. Mukasey, 529 F.3d
99, 110 (2d Cir. 2008); Manzur v. DHS, 494 F.3d 281, 289 (2d
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Cir. 2007). The only issue before us is whether the agency
erred in denying Petitioners’ application for withholding of
removal since the CAT claim is not raised on appeal.
Substantial evidence supports the agency’s decision
denying Petitioners’ application for withholding of removal.
Persecution is defined as a “threat to the life or freedom of,
or the infliction of suffering or harm upon, those who differ
in a way regarded as offensive.” Matter of Acosta, 19 I. & N.
Dec. 211, 222 (BIA 1985), overruled, in part, on other
grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); accord
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d
Cir. 2006). The harm must be sufficiently severe, rising
above “mere harassment.” Ivanishvili, 433 F.3d at 341.
Economic harm may constitute persecution. See In re T-Z-, 24
I. & N. Dec. 163, 173 (BIA 2007). Indeed, “[t]he economic
difficulties must be above and beyond those generally shared
by others in the country of origin and involve noticeably more
than mere loss of social advantages or physical comforts.”
Id.
In this case, the agency considered cumulatively Yong’s
claim that he was the subject of racial epithets, was chased
out of a rural area, and experienced discrimination at school,
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and reasonably concluded that such harm constituted harassment
not rising to the level of persecution. See Ivanishvili, 433
F.3d at 341. Moreover, the agency reasonably found that the
Petitioners failed to demonstrate that their inability to
obtain a vendor license caused them severe economic
disadvantage amounting to economic persecution, particularly
when his family owned a business and he was able to afford
travel to Thailand frequently for religious pilgrimages. See
In re T-Z-, 24 I. & N. Dec. at 173. Therefore, the agency did
not err in finding that the harm Petitioners suffered did not
rise to the level of persecution or economic persecution.
Ivanishvili, 433 F.3d at 341; In re T-Z-, 24 I. & N. Dec. at
173. Petitioners do not raise any challenge to the agency’s
finding that they failed to demonstrate a likelihood of future
persecution other than their conclusory assertion that they
will suffer harm similar to that which they suffered in the
past. Accordingly, we conclude that the agency did not err in
denying Petitioners’ application for withholding of removal.
See 8 C.F.R. § 1208.16(b).
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,
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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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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