Jian She Wang v. Holder

10-4996-ag Wang v. Holder BIA Morace, IJ A088 777 238 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 22nd day of November, two thousand eleven. 5 6 PRESENT: 7 ROBERT D. SACK, 8 RICHARD C. WESLEY, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _______________________________________ 12 13 JIAN SHE WANG, 14 Petitioner, 15 16 v. 10-4996-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Jian She Wang, pro se, Bayside, New 24 York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; David V. Bernal, Assistant 28 Director; Yedidya Cohen, Trial 29 Attorney, Office of Immigration 30 Litigation, United States Department 31 of Justice, Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED, that the petition for review 4 is DENIED. 5 Jian She Wang, a native and citizen of China, seeks 6 review of a November 19, 2010, order of the BIA affirming 7 the November 25, 2008, decision of Immigration Judge (“IJ”) 8 Philip L. Morace, which denied his application for asylum, 9 withholding of removal, and relief under the Convention 10 Against Torture (“CAT”). In re Jian She Wang, No. A088 777 11 238 (B.I.A. Nov. 19, 2010), aff’g No. A088 777 238 (Immig. 12 Ct. N.Y. City Nov. 25, 2008). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 of this case. 15 We have reviewed the decision of the IJ as modified and 16 supplemented by the BIA. See Xue Hong Yang v. U.S. Dep't of 17 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. 18 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable 19 standards of review are well-established. See Salimatou Bah 20 v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); Shu Wen Sun v. 21 BIA, 510 F.3d 377, 379 (2d Cir. 2007). 22 Under 8 U.S.C. § 1101(a)(42), an individual who was not 23 personally subject to a forced abortion or sterilization may 2 1 still establish eligibility for asylum by showing that he 2 engaged in “other resistance to a coercive population 3 control program,” and that, as a result of that resistance, 4 he was persecuted. Shi Liang Lin v. U.S. Dep’t of Justice, 5 494 F.3d 296, 308 (2d Cir. 2007)(en banc); see also Matter 6 of J-S-, 24 I. & N. Dec. 520, 536-37 (A.G. 2008) (adopting 7 the holding in Shi Liang Lin). 8 The agency reasonably concluded that any harm Wang 9 suffered did not rise to the level of persecution. The BIA 10 has defined persecution as a “threat to the life or freedom 11 of, or the infliction of suffering or harm upon, those who 12 differ in a way regarded as offensive.” Matter of Acosta, 13 19 I. & N. Dec. 211, 222 (BIA 1985), overruled, in part, on 14 other grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); 15 accord Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 16 342 (2d Cir. 2006). The harm must be sufficiently severe, 17 rising above “mere harassment.” Ivanishvili, 433 F.3d at 18 341. Here, the record shows that Wang was punched in the 19 stomach three times by a police officer and detained for 20 five hours, did not suffer any injury necessitating medical 21 treatment, and did not suffer any harm while he was in 22 detention other than that his “whole face was whitish.” 3 1 Wang presented no evidence that he suffered any additional 2 harm after his detention, and, in fact, testified that he 3 remained at his place of employment and was sent to the 4 United States on a conference for work. Accordingly, the 5 agency properly concluded that the harm suffered did not 6 constitute persecution. See Jian Qiu Lin v. Holder, 632 7 F.3d 820, 822 (2d Cir. 2011) (explaining that “a beating 8 that occurs within the context of an arrest or detention 9 [does not] constitute[] persecution per se”); Mei Fun Wong 10 v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (persecution is 11 “an extreme concept that does not include every sort of 12 treatment our society regards as offensive.”). 13 Because the agency properly concluded that Wang did not 14 suffer past persecution, he is not entitled to a presumption 15 of future persecution. See 8 C.F.R. § 208.13(b)(1). 16 Because Wang’s claim of possible sterilization relies mainly 17 upon past harm, the agency reasonably concluded that he 18 failed to meet his burden of establishing a well-founded 19 fear of future persecution. See Jian Xing Huang v. INS, 421 20 F.3d 125, 129 (2d Cir. 2005) (concluding that a fear is not 21 objectively reasonable if it lacks “solid support” in the 22 record and is merely “speculative at best”). Because Wang 4 1 did not demonstrate past persecution, or a well-founded fear 2 of future persecution, the agency did not err in denying his 3 applications for asylum and withholding of removal, which 4 shared the same factual predicate. See Paul v. Gonzales, 5 444 F.3d 148, 156-57 (2d Cir. 2006). 6 Finally, we decline to address Wang’s allegation that 7 he will be persecuted or tortured for leaving the country 8 without permission, inasmuch as it was not raised before the 9 agency. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) 10 (to preserve a claim for judicial review, petitioners must 11 also raise to the BIA the specific issues they later raise 12 in this Court); Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 13 104, 119-20 (2d Cir. 2007) (while not jurisdictional, this 14 judicially imposed exhaustion requirement is mandatory). 15 For the foregoing reasons, the petition for review is 16 DENIED. As we have completed our review, any stay of 17 removal that the Court previously granted in this petition 18 is VACATED, and any pending motion for a stay of removal in 19 this petition is DISMISSED as moot. Any pending request for 20 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 34.1(b). 3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5 6 6