Yuan Shang Zhu v. Holder

09-2873-ag
Zhu v. Holder
BIA
Weisel, IJ
A097 701 757
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
R U L IN G S B Y SU M M A R Y O R D E R D O N O T H A V E P R E CE D E N T IA L E F FE C T . C ITATIO N T O A SU M M AR Y O RD E R FILE D O N O R A FT E R
J AN U ARY 1, 2007, IS PERM ITTED AN D IS GO VER N ED BY F ED ER AL R U LE O F A P PE LL AT E P R O C E D U R E 32.1 AN D T H IS C O U RT ’S L O CAL
R U L E 32.1.1. W H E N C ITIN G A SU M M AR Y O R D ER IN A D O CU M E N T FILE D W ITH T H IS C O U RT , A PAR TY M UST CITE E IT H E R T H E
F ED ER AL A PPE N D IX O R AN E LE CTR O N IC D ATAB A SE ( W IT H T H E N O TATIO N “ SU M M A R Y O R D E R ”). A PAR TY C ITIN G A SU M M AR Y
O R D E R M U ST SE R V E A C O P Y O F IT O N A N Y P AR T Y N O T R E P R E SE N T E D B Y CO U N SE L

1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 2 nd day of February, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 PIERRE N. LEVAL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 YUAN SHANG ZHU, ALSO KNOWN AS YONG
14 SHANG ZHU,
15 Petitioner,
16
17 v. 09-2873-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Michael Brown, Law Offices of
25 Michael Brown, New York, New York.
 1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Christopher C. Fuller,
3 Senior Litigation Counsel, Office of
4 Immigration Litigation; Aaron R.
5 Petty, Trial Attorney, Office of
6 Immigration Litigation, United
7 States Department of Justice,
8 Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a

11 Board of Immigration Appeals (“BIA”) decision, it is hereby

12 ORDERED, ADJUDGED, AND DECREED that the petition for review

13 is DENIED.

14 Petitioner Yuan Shang Zhu, a native and citizen of the

15 People’s Republic of China, seeks review of a June 18, 2009

16 order of the BIA affirming the November 6, 2007 decision of

17 Immigration Judge (“IJ”) Robert D. Weisel denying his

18 application for asylum, withholding of removal, and relief

19 under the Convention Against Torture (“CAT”). In re Yuan

20 Shang Zhu, No. A097 701 757 (B.I.A. Jun. 18, 2009), aff’g

21 No. A097 701 757 (Immig. Ct. N.Y. City Nov. 6, 2007). We

22 assume the parties’ familiarity with the underlying facts

23 and procedural history in this case.

24 Under the circumstances of this case, we review the

25 IJ’s decision as modified by the BIA decision, i.e., minus

26 the arguments for denying relief that were rejected by the

27 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

2
1 520, 522 (2d Cir. 2005). The applicable standards of review

2 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin

3 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

4 I. Asylum and Withholding of Removal

5 A. Past Persecution

6 Zhu argues that he suffered past persecution because he

7 was pushed and beaten on a single occasion while trying to

8 prevent family planning officials from removing his wife

9 from their home for the involuntary insertion of an IUD.

10 See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296,

11 301 (2d Cir. 2007). Although he acknowledges that his

12 “injuries were minor” and that he did not require medical

13 attention, Zhu argues that the agency failed to consider

14 that because the beating occurred in his home, he was

15 humiliated and effectively detained. 1 However, persecution

16 is the infliction of suffering or harm on the basis of a

17 protected ground that is of sufficient severity as to rise

18 above “mere harassment” – even harassment causing

1
Although the government argues that Zhu failed to
exhaust his claim that the humiliation he endured
constituted persecution, Zhu challenged the IJ’s
determination that his beating did not constitute past
persecution before the BIA, and we do not hold a
petitioner to “the exact contours of his argument below.”
See Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005).

3
1 substantial emotional distress. Ivanishvili v. U.S. Dep’t

2 of Justice, 433 F.3d 332, 341 (2d Cir. 2006). The agency

3 properly considered the context in which Zhu’s beating

4 occurred, and reasonably found that Zhu’s testimony did not

5 establish that he suffered past persecution. See Beskovic

6 v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006).

7 B. Well-Founded Fear

8 Because the BIA considered whether Zhu established a

9 well-founded fear of sterilization as a result of violating

10 the family planning policy, we consider the issue exhausted.

11 See Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d Cir.

12 2006). The IJ noted, however, that there is no “current

13 information or evidence to suggest that family planning

14 officials have a desire to harm [Zhu] if he returns to

15 China.” Contrary to Zhu’s claim here, his wife’s affidavit

16 does not provide such information as it does not address any

17 current harms that he might face. Thus, because the agency

18 reasonably noted that the record was devoid of evidence

19 suggesting “family planning officials have a desire to harm

20 him,” record evidence supports its decision. Jian Xing

21 Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per curiam)

22 (holding that, absent solid support in the record for the

4
1 petitioner’s assertion that he would be subjected to

2 persecution, his fear was ‘speculative at best’). And

3 because Zhu was unable to meet his burden for asylum, he has

4 necessarily failed to meet the higher burden required for

5 withholding of removal. See Paul v. Gonzales, 444 F.3d 148,

6 156 (2d Cir. 2006).

7 II. CAT Relief

8 Although Zhu sets forth the standard for CAT relief in

9 his brief before this Court, he does not challenge the basis

10 of the IJ’s denial of CAT relief – that he did not meet his

11 burden of showing that he would be subject to anything

12 amounting to torture – or otherwise argue that any evidence

13 established a likelihood of torture upon his return to

14 China. Accordingly, we deem any challenge to the agency’s

15 denial of CAT relief waived. Yueqing Zhang v. Gonzales, 426

16 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

17 For the foregoing reasons, the petition for review is

18 DENIED. As we have completed our review, any stay of

19 removal that the Court previously granted in this petition

20 is VACATED, and any pending motion for a stay of removal in

21 this petition is DISMISSED as moot. Any pending request for

22 oral argument in this petition is DENIED in accordance with

5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second

2 Circuit Local Rule 34(b).
3
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
9

6