Zi Yun Liang v. Sessions

     11-4296
     Liang v. Sessions
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A099 429 458
                              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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   9th day of August, two thousand seventeen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            PIERRE N. LEVAL,
10                     Circuit Judges.
11   _____________________________________
12
13   ZI YUN LIANG,
14                             Petitioner,
15
16                       v.                                          11-4296
17                                                                   NAC
18
19   JEFFERSON B. SESSIONS III, UNITED
20   STATES ATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                         Charles Christophe, New York,
25                                           New York.
26
27   FOR RESPONDENT:                         Stuart F. Delery, Acting Assistant
28                                           Attorney General; M. Jocelyn Lopez
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1                                     Wright, Senior Litigation Counsel;
2                                     Kristofer R. McDonald, Trial
3                                     Attorney, Office of Immigration
4                                     Litigation, United States
5                                     Department of Justice, Washington,
6                                     D.C.
7
8             UPON DUE CONSIDERATION of this petition for review of a

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

10   ORDERED, ADJUDGED, AND DECREED that the petition for review is

11   DENIED.

12            Petitioner Zi Yun Liang, a native and citizen of China,

13   seeks review of a September 28, 2011, decision of the BIA

14   affirming the March 31, 2010, decision of an Immigration Judge

15   (“IJ”) denying his application for asylum, withholding of

16   removal, and relief under the Convention Against Torture

17   (“CAT”).      In re Zi Yun Liang, No. A099 429 458 (B.I.A. Sept.

18   28, 2011), aff’g No. A099 429 458 (Immig. Ct. N.Y. City Mar.

19   31, 2010).        We assume the parties’ familiarity with the

20   underlying facts and procedural history of this case.

21            The applicable standards of review are well established.

22   See 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey,

23   546 F.3d 138, 157-58 (2d Cir. 2008).             Liang applied for asylum,

24   withholding      of   removal,   and       CAT   relief,   asserting   past

25   persecution on account of his resistance to China’s family

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1    planning policy, and a fear of future persecution based on the

2    birth of his children in the United States purportedly in

3    violation of the family planning policy and on account of his

4    Christian faith.

5             Liang    failed    to      establish    that      he     suffered      past

6    persecution.           He   testified        that,    in   the    course     of    an

7    altercation when he tried to visit his wife while she was

8    undergoing a compelled abortion, a family planning official hit

9    him      once    on   his   right    cheek.          Without     more,   this     was

10   insufficient to meet his burden of establishing abuse that rose

11   to the level of persecution.            As Liang did not allege that the

12   official inflicted pain or harm or caused injury that required

13   medical treatment, we find no error in the BIA’s conclusion that

14   this did not rise to the level of persecution.                      See Jian Qiu

15   Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011); see also Mei

16   Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (“We have

17   emphasized that persecution is ‘an extreme concept that does

18   not include every sort of treatment our society regards as

19   offensive.’” (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,

20   416 F.3d 192, 198 (2d Cir. 2005))).                    Relying on Beskovic v.

21   Gonzales, 467 F.3d 223, 226 (2d Cir. 2006), which held that


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1    mistreatment that is insufficient to constitute persecution if

2    committed on a person at liberty can in some circumstances rise

3    to the level of persecution if committed on a person who is being

4    detained on a protected ground, Liang argues that this principle

5    should apply to him because he was hit while trying to visit

6    his wife who was being held for an abortion.       While we make no

7    categorical ruling as to whether the Beskovic principle might

8    ever extend to circumstances where a petitioner was abused in

9    the context of the detention of a family member, we nonetheless

10   rule that, in the circumstances Liang described, the hit to his

11   cheek did not amount to persecution.

12            Because Liang did not demonstrate past persecution, he was

13   not entitled to a presumption of a well-founded fear of future

14   persecution.       See 8 C.F.R. § 1208.13(b)(1).     Liang did not

15   establish an objectively reasonable fear of persecution under

16   the family planning policy because he failed to demonstrate that

17   Chinese nationals returning with U.S.-born children face

18   persecution in his home area of the Xinjiang Uyghur Autonomous

19   Region (“XUAR”).      See Jian Hui Shao, 546 F.3d at 142-43, 160-61,

20   165-66.




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1             Liang also did not establish a well-founded fear of

2    persecution based on his Christian faith.        He did not submit

3    evidence that Chinese officials are aware or likely to become

4    aware of his religious practice.           See Hongsheng Leng v.

5    Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).      Although there was

6    evidence that repression of religious freedom had increased in

7    the XUAR, it discussed only the repression of Muslims and Uyghur

8    Christians in that region, and did not discuss the mistreatment

9    of Han Christians such as Liang.       See Jian Hui Shao, 546 F.3d

10   at 160-61.

11            Because Liang failed to demonstrate a well-founded fear of

12   future persecution, the agency did not err in denying asylum,

13   withholding of removal, and CAT relief.      See Paul v. Gonzales,

14   444 F.3d 148, 156-57 (2d Cir. 2006).

15            For the foregoing reasons, the petition for review is

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

17   that the Court previously granted in this petition is VACATED,

18   and any pending motion for a stay of removal in this petition

19   is DISMISSED as moot.       Any pending request for oral argument

20   in this petition is DENIED in accordance with Federal Rule of




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1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk




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