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.
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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
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1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34(b).
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5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
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