Xiao Hong Jiang v. Holder

11-1639-ag
Jiang v. Holder
BIA
Abrams, IJ
A078 706 780
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 21 st day of February, two thousand twelve.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 XIAO HONG JIANG,
14 Petitioner,
15
16 v. 11-1639-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: ALEXANDER KWOK-HO YU, New York, New
24 York.
25
26 FOR RESPONDENT: DANA M. CAMILLERI, Trial Attorney,
27 Office of Immigration Litigation,
28 Civil Division (Tony West, Assistant
29 Attorney General, Ernesto H. Molina,
30 Jr., Assistant Director, on the
31 brief), for Eric H. Holder, Jr.,
32 United States Attorney General,
33 Washington, D.C.
34
 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 Petitioner Xiao Hong Jiang, a native and citizen of the

6 People’s Republic of China, seeks review of a March 31,

7 2011, decision of the BIA affirming the March 18, 2009,

8 decision of Immigration Judge Steven R. Abrams,

9 pretermitting her application for asylum and denying her

10 claims for withholding of removal and relief under the

11 Convention Against Torture (“CAT”). See In re Xiao Hong

12 Jiang, No. A078 706 780 (B.I.A. Mar. 31, 2011), aff’g No.

13 A078 706 780 (Immig. Ct. New York City Mar. 18, 2009). We

14 assume the parties’ familiarity with the underlying facts

15 and procedural history in this case.

16 Because Jiang does not challenge the agency’s

17 pretermission of her asylum application, we need not review

18 that portion of the agency’s decision. See Zhang v.

19 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

20 While the government argues that Jiang has further waived

21 any challenge to the agency’s burden finding due to her

22 failure to brief the issue, we conclude that Jiang’s

23 arguments, although summary, are sufficient to bring the

24 issues before this Court.

2
 1 However, the agency’s finding that Jiang’s week-long

2 detention for practicing Zhong Gong did not constitute harm

3 amounting to persecution is reasonable. Brief periods of

4 detention, on their own, do not necessarily rise to the

5 level of persecution and Jiang did not adequately establish

6 any relevant physical harm caused by, or during, her

7 detention. See Joaquin-Porras v. Gonzales, 435 F.3d 172,

8 182 (2d Cir. 2006) (upholding agency’s determination that

9 applicant was not eligible for withholding of removal based

10 on “brief” detention after which he was released “without

11 harm”); see also Ivanishvili v. U.S. Dep’t of Justice, 433

12 F.3d 332, 341 (2d Cir. 2006) (in order to constitute

13 persecution, the harm to an asylum applicant must be

14 sufficiently severe, rising above mere “harassment.”);

15 Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir. 2006) (“The

16 circumstances surrounding a petitioner’s arrest or detention

17 require a case-by-case adjudication by the BIA.”).

18 Furthermore, because Jiang presented no objective evidence

19 that the Chinese government had an open case against her,

20 was seeking her out, or intended to harm her, the agency

21 reasonably concluded that Jiang had not demonstrated an

22 objective basis for a fear of future persecution. See Huang

23 v. INS, 421 F.3d 125, 129 (finding petitioner’s fear of

3
 1 persecution “speculative at best” where it lacked “solid

2 support in the record”).

3 For the foregoing reasons, the petition for review is

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

5 removal that the Court previously granted in this petition

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

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

8 oral argument in this petition is DENIED in accordance with

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

10 Circuit Local Rule 34.1(b).

11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14

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