13-663
Yu v. Holder
BIA
Videla, IJ
A098 690 900
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 19th day of May, two thousand fourteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 YONG SEN YU,
14 Petitioner,
15
16 v. 13-663
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jay Ho Lee, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Carl McIntyre, Assistant
27 Director; Christina Bechak
28 Parascandola, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Yong Sen Yu, a native and citizen of the People’s
6 Republic of China, seeks review of a January 29, 2013,
7 decision of the BIA affirming the March 3, 2011, decision of
8 Immigration Judge (“IJ”) Gabriel C. Videla, denying him
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Yong Sen Yu, No.
11 A098 690 900 (B.I.A. Jan. 29, 2013), aff’g No. A098 690 900
12 (Immig. Ct. N.Y. City Mar. 3, 2011). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We have reviewed both the IJ’s and the BIA’s opinions
16 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d
17 233, 237 (2d Cir. 2008). The applicable standards of review
18 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
19 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
20 2009).
21 It is undisputed that Yu is not eligible for asylum
22 solely on the basis of his wife’s forced abortion. See Shi
2
1 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-310
2 (2d Cir. 2007). Nevertheless, he can still qualify for
3 asylum or withholding of removal by demonstrating that:
4 (1) he engaged in “other resistance” to the family planning
5 policy; and (2) he suffered harm rising to the level of
6 persecution, or he had a well-founded fear or likelihood of
7 suffering such harm as a direct result of his resistance.
8 See id. at 313; see also 8 U.S.C. § 1101(a)(42); 8 C.F.R.
9 § 1208.16(b).
10 Even assuming that Yu established “resistance,” the
11 agency did not err in finding that he failed to allege harm
12 amounting to persecution on account of that resistance.
13 Indeed, he did not demonstrate that he suffered economic
14 persecution because he failed to provide any evidence
15 establishing that the fines imposed caused him “severe
16 economic disadvantage.” In re T-Z-, 24 I. & N. Dec. 163,
17 170-75 (B.I.A. 2007); see also Guan Shan Liao v. U.S. Dep’t
18 of Justice, 293 F.3d 61, 70 (2d Cir. 2002). Furthermore,
19 the agency did not err in finding that Yu’s detention for
20 five hours, during which he was not mistreated, did not
21 constitute persecution. See Beskovic v. Gonzales, 467 F.3d
22 223, 226 n.3 (2d Cir. 2006) (noting that the Court had
3
1 previously held that two brief detentions without physical
2 mistreatment did not constitute persecution); see also
3 Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir.
4 2006).
5 Moreover, although the IJ may have erred by failing to
6 evaluate the cumulative impact of these incidents, the BIA
7 reasonably concluded that, considered in the aggregate, the
8 harm Yu experienced did not rise to the level of
9 persecution, particularly when he did not testify to having
10 personally suffered any specific physical, mental, or
11 economic harm. See Mei Fun Wong v. Holder, 633 F.3d 64, 72
12 (2d Cir. 2011) (“We have emphasized that persecution is an
13 extreme concept that does not include every sort of
14 treatment our society regards as offensive.”) (internal
15 quotation marks omitted). Thus, the agency did not err in
16 concluding that Yu failed to establish past persecution
17 qualifying him for relief. See Shi Liang Lin, 494 F.3d at
18 309.
19 Absent past persecution, an alien may establish
20 eligibility for asylum by demonstrating a well-founded fear
21 of future persecution. See 8 C.F.R. § 1208.13(b)(2); see
22 also Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.
23 2004). The agency reasonably concluded that Yu failed to
4
1 demonstrate that his fear of future persecution was well-
2 founded. Yu paid a fine for having a child out of wedlock
3 and at a younger age than permitted, yet he did not
4 demonstrate that family planning officials would continue to
5 consider him in violation of the family planning policy
6 based on the birth of his one child more than twenty years
7 ago. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 142-43,
8 160 n.20, 169-70 (2d Cir. 2008); see also Jian Xing Huang v.
9 INS, 421 F.3d 125, 129 (2d Cir. 2005). Additionally, as the
10 agency found, Yu failed to submit evidence demonstrating
11 that similarly situated individuals face forced
12 sterilization. See Jian Hui Shao, 546 F.3d at 160-61; see
13 also Jian Xing Huang, 421 F.3d at 129.
14 Accordingly, because the agency did not err in finding
15 that Yu failed to demonstrate either past persecution or a
16 well-founded fear of persecution, it reasonably denied him
17 asylum and withholding of removal because those claims were
18 based on the same factual predicate. See Paul v. Gonzales,
19 444 F.3d 148, 156-57 (2d Cir. 2006). Yu does not challenge
20 the agency’s denial of CAT relief.
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
23 removal that the Court previously granted in this petition
5
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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6