11-2918 BIA
Shao v. Holder Burr, IJ
A099 532 856
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 25th day of April, two thousand thirteen.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.
_______________________________________
DE GOU SHAO, AKA DE GUI SHAO,
Petitioner,
v. 11-2918
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Yee Ling Poon, Robert Duk-Hwan Kim,
New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Lyle D. Jentzer, Senior
Litigation Counsel; Paul F. Stone,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
De Gou Shao, a native and citizen of the People’s
Republic of China, seeks review of a June 23, 2011, order of
the BIA affirming the August 27, 2009, decision of
Immigration Judge (“IJ”) Sarah M. Burr, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”), and denying
his motion to remand. In re De Gou Shao, No. A099 532 856
(B.I.A. June 23, 2011), aff’g No. A099 532 856 (Immig. Ct.
N.Y. City Aug. 27, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
the decision of the IJ as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
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The only issues before us are the agency’s finding regarding
asylum based on other resistance to China’s coercive
population control program and Shao’s fear of sterilization,
and Shao’s motion to remand.
I. Asylum
In order to qualify for asylum relief, Shao must show
“other resistance to a coercive population control program,”
and must show that as a result of that resistance, he was
persecuted. See Shi Liang Lin v. U.S. Dep’t of Justice, 494
F.3d 296, 309 (2d Cir. 2007). The BIA has defined
persecution as a “threat to the life or freedom of, or the
infliction of suffering or harm upon, those who differ in a
way regarded as offensive.” Matter of Acosta, 19 I. & N.
Dec. 211, 222 (BIA 1985), overruled, in part, on other
grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); accord
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d
Cir. 2006). The harm must be sufficiently severe, rising
above “mere harassment.” Ivanishvili, 433 F.3d at 341.
Economic harm may constitute persecution; however, “an
applicant for asylum must demonstrate a severe economic
disadvantage.” Matter of T-Z-, 24 I. & N. Dec. 163, 173
(BIA 2007)(internal quotation mark omitted). Here, the
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agency properly addressed the cumulative harassment
described by Shao, and reasonably found that it was
insufficiently severe to constitute persecution. See Manzur
v. DHS, 494 F.3d 281, 290 (2d Cir. 2007); Beskovic v.
Gonzales, 467 F.3d 223, 226 (2d Cir. 2006). Shao presented
no evidence to suggest that the one fine he was forced to
pay caused him severe economic disadvantage, nor did he
present any evidence indicating that he suffered harm from
the phone calls and threats he received from family planning
officials.
Because the agency reasonably concluded that Shao did
not suffer past persecution, he is not entitled to a
presumption of future persecution based on his claim of
other resistance to the coercive population control program.
See 8 C.F.R. § 1208.13(b)(1). Shao also claims a well-
founded fear of future sterilization because he has one
child, and would like to have a second child. However, the
agency did not err in finding that Shao’s claim was too
speculative to establish an objectively reasonable fear of
sterilization. See Jian Xing Huang v. INS, 421 F.3d 125,
128-29 (2d Cir. 2005) (per curiam); cf. Rui Ying Lin v.
Gonzales, 445 F.3d 127, 135-36 (2d Cir. 2006).
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II. Motion to Remand
This Court reviews the BIA’s denial of a motion to
remand for abuse of discretion. See Li Yong Cao v. U.S.
Dep’t of Justice, 421 F.3d 149, 156-57 (2d Cir. 2005). An
abuse of discretion may be found where the BIA’s decision
“provides no rational explanation, inexplicably departs from
established policies, is devoid of any reasoning, or
contains only summary or conclusory statements; that is to
say, where the Board has acted in an arbitrary or capricious
manner.” Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir. 2005)
(per curiam) (quoting Ke Zhen Zhao v. U.S. Dep’t of Justice,
265 F.3d 83, 93 (2d Cir. 2001)). A motion to remand may be
denied when the movant fails to provide new, previously
unavailable evidence of his prima facie eligibility for the
relief sought. See Li Yong Cao, 421 F.3d at 156-57. In
this case, the BIA did not abuse its discretion in denying
Shao’s motion to remand based on his failure to establish
his prima facie eligibility for relief because he did not
present any evidence to show that the Chinese government was
aware, or likely to become aware, of his conversion to
Christianity, or that it would seek to persecute him on that
basis. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d
Cir. 2008) (per curiam); Ramsameachire v. Ashcroft, 357 F.3d
169, 178 (2d Cir. 2004).
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Shao further asserts that the BIA erred in concluding
that there was no pattern or practice of persecution of
Christians in China. See 8 C.F.R. § 1208.16(b)(2)(i)
(providing that an applicant shall not be required to show
that he will be singled out individually for persecution if
he establishes that there is a pattern or practice of
persecution of a group of similarly situated persons);
Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007). However,
the BIA’s conclusion is supported by substantial evidence in
the record and provides a sufficient basis for finding no
pattern or practice of persecution of Christians in China.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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