16-3403 Tian v. Sessions BIA Vomacka, IJ A200 929 153 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 3rd day of October, two thousand eighteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 ROSEMARY S. POOLER, 9 ROBERT D. SACK, 10 Circuit Judges. 11 _____________________________________ 12 13 SHUHUI TIAN, 14 Petitioner, 15 16 v. 16-3403 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Farah Loftus, Los Angeles, CA. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Erica B. Miles, 27 Senior Litigation Counsel; 28 Elizabeth K. Fitzgerald-Sambou, 29 Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 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 Shuhui Tian, a native and citizen of the
6 People’s Republic of China, seeks review of a September 21,
7 2016, decision of the BIA affirming an October 17, 2014,
8 decision of an Immigration Judge (“IJ”) denying Tian’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Shuhui
11 Tian, No. A200 929 153 (B.I.A. Sept. 21, 2016), aff’g No.
12 A200 929 153 (Immig. Ct. N.Y. City Oct. 17, 2014). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA and review only
17 the ground for decision on which the BIA relied—Tian’s
18 failure to meet his burden of proof. See Xue Hong Yang v.
19 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
20 The applicable standards of review are well established.
21 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
22 F.3d 510, 513 (2d Cir. 2009). For the reasons that follow,
23 we conclude that the agency did not err in determining that
2 1 Tian failed to demonstrate past persecution or a well-
2 founded fear of future persecution.
3 I. Past Persecution
4 While the Immigration and Nationality Act does not define
5 persecution, see Baba v. Holder, 569 F.3d 79, 85 (2d Cir.
6 2009), the BIA has defined it as a “threat to the life or
7 freedom of, or the infliction of suffering or harm upon, those
8 who differ in a way regarded as offensive.” Matter of Acosta,
9 19 I. & N. Dec. 211, 222 (B.I.A. 1985), overruled in part on
10 other grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);
11 accord Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332,
12 342 (2d Cir. 2006). “The BIA must . . . be keenly sensitive
13 to the fact that a ‘minor beating’ or, for that matter, any
14 physical degradation designed to cause pain, humiliation, or
15 other suffering, may rise to the level of persecution if it
16 occurred in the context of an arrest or detention on the basis
17 of a protected ground.” Beskovic v. Gonzales, 467 F.3d 223,
18 226 n.3 (2d Cir. 2006) (quoting Ivanishvili, 433 F.3d at
19 341)). The harm must be sufficiently severe to rise above
20 “mere harassment.” Ivanishvili, 433 F.3d at 341.
21 The agency did not err by determining that Tian’s past
22 harm did not rise to the level of persecution. 8 U.S.C.
23 § 1252(b)(4) (A determination that an applicant has failed
3 1 to meet his burden is “conclusive unless manifestly
2 contrary to the law and an abuse of discretion.”). Tian’s
3 alleged harm—that family planning officials pushed him into
4 a corner, punched him in the stomach, slapped his face
5 causing his nose to bleed, and then detained him for two
6 days—is indistinguishable from the allegations in Jian Qiu
7 Liu v. Holder, 632 F.3d 820 (2d Cir. 2011). In Jian Qiu
8 Liu, we declined to remand where the agency concluded that
9 the applicant’s past harm—being slapped in the face,
10 punched repeatedly, and detained for two days—did not rise
11 to the level of persecution. 632 F.3d at 821-23.
12 Accordingly, because the agency took Tian’s subsequent
13 detention into account when assessing the context of his
14 beating and correctly observed that Tian was beaten before
15 detention, was not mistreated while detained, and did not
16 suffer any lasting injury, we find no error in the agency’s
17 conclusion that this single incident does not constitute
18 persecution. Id.; Beskovic, 467 F.3d at 226 (requiring
19 agency to consider context of mistreatment).
20 II. Future Persecution
21 Absent past persecution, an alien may still establish
22 eligibility for asylum by demonstrating a well-founded fear
23 of future persecution, which is a “subjective fear that is
4 1 objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552
2 F.3d 277, 284 (2d Cir. 2009) (internal quotation marks
3 omitted); see also Y.C. v. Holder, 741 F.3d 324, 332 (2d
4 Cir. 2013) (“For an asylum claim, the applicant must show a
5 reasonable possibility of future persecution.” (internal
6 quotation marks omitted)). “In the absence of solid
7 support in the record,” a fear of persecution is not well
8 founded and “is speculative at best.” Jian Xing Huang v.
9 U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005).
10 The agency did not err in determining that Tian failed
11 to establish a well-founded fear of future persecution. 8
12 U.S.C. § 1252(b)(4). The agency reasonably found
13 speculative Tian’s claim that he would be persecuted on his
14 return to China for his past opposition to the family
15 planning policy because he remained in China for two and a
16 half years after his beating and detention without
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16-3403 Tian v. Sessions BIA Vomacka, IJ A200 929 153 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 3rd day of October, two thousand eighteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 ROSEMARY S. POOLER, 9 ROBERT D. SACK, 10 Circuit Judges. 11 _____________________________________ 12 13 SHUHUI TIAN, 14 Petitioner, 15 16 v. 16-3403 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Farah Loftus, Los Angeles, CA. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Erica B. Miles, 27 Senior Litigation Counsel; 28 Elizabeth K. Fitzgerald-Sambou, 29 Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 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 Shuhui Tian, a native and citizen of the
6 People’s Republic of China, seeks review of a September 21,
7 2016, decision of the BIA affirming an October 17, 2014,
8 decision of an Immigration Judge (“IJ”) denying Tian’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Shuhui
11 Tian, No. A200 929 153 (B.I.A. Sept. 21, 2016), aff’g No.
12 A200 929 153 (Immig. Ct. N.Y. City Oct. 17, 2014). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA and review only
17 the ground for decision on which the BIA relied—Tian’s
18 failure to meet his burden of proof. See Xue Hong Yang v.
19 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
20 The applicable standards of review are well established.
21 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
22 F.3d 510, 513 (2d Cir. 2009). For the reasons that follow,
23 we conclude that the agency did not err in determining that
2 1 Tian failed to demonstrate past persecution or a well-
2 founded fear of future persecution.
3 I. Past Persecution
4 While the Immigration and Nationality Act does not define
5 persecution, see Baba v. Holder, 569 F.3d 79, 85 (2d Cir.
6 2009), the BIA has defined it as a “threat to the life or
7 freedom of, or the infliction of suffering or harm upon, those
8 who differ in a way regarded as offensive.” Matter of Acosta,
9 19 I. & N. Dec. 211, 222 (B.I.A. 1985), overruled in part on
10 other grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);
11 accord Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332,
12 342 (2d Cir. 2006). “The BIA must . . . be keenly sensitive
13 to the fact that a ‘minor beating’ or, for that matter, any
14 physical degradation designed to cause pain, humiliation, or
15 other suffering, may rise to the level of persecution if it
16 occurred in the context of an arrest or detention on the basis
17 of a protected ground.” Beskovic v. Gonzales, 467 F.3d 223,
18 226 n.3 (2d Cir. 2006) (quoting Ivanishvili, 433 F.3d at
19 341)). The harm must be sufficiently severe to rise above
20 “mere harassment.” Ivanishvili, 433 F.3d at 341.
21 The agency did not err by determining that Tian’s past
22 harm did not rise to the level of persecution. 8 U.S.C.
23 § 1252(b)(4) (A determination that an applicant has failed
3 1 to meet his burden is “conclusive unless manifestly
2 contrary to the law and an abuse of discretion.”). Tian’s
3 alleged harm—that family planning officials pushed him into
4 a corner, punched him in the stomach, slapped his face
5 causing his nose to bleed, and then detained him for two
6 days—is indistinguishable from the allegations in Jian Qiu
7 Liu v. Holder, 632 F.3d 820 (2d Cir. 2011). In Jian Qiu
8 Liu, we declined to remand where the agency concluded that
9 the applicant’s past harm—being slapped in the face,
10 punched repeatedly, and detained for two days—did not rise
11 to the level of persecution. 632 F.3d at 821-23.
12 Accordingly, because the agency took Tian’s subsequent
13 detention into account when assessing the context of his
14 beating and correctly observed that Tian was beaten before
15 detention, was not mistreated while detained, and did not
16 suffer any lasting injury, we find no error in the agency’s
17 conclusion that this single incident does not constitute
18 persecution. Id.; Beskovic, 467 F.3d at 226 (requiring
19 agency to consider context of mistreatment).
20 II. Future Persecution
21 Absent past persecution, an alien may still establish
22 eligibility for asylum by demonstrating a well-founded fear
23 of future persecution, which is a “subjective fear that is
4 1 objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552
2 F.3d 277, 284 (2d Cir. 2009) (internal quotation marks
3 omitted); see also Y.C. v. Holder, 741 F.3d 324, 332 (2d
4 Cir. 2013) (“For an asylum claim, the applicant must show a
5 reasonable possibility of future persecution.” (internal
6 quotation marks omitted)). “In the absence of solid
7 support in the record,” a fear of persecution is not well
8 founded and “is speculative at best.” Jian Xing Huang v.
9 U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005).
10 The agency did not err in determining that Tian failed
11 to establish a well-founded fear of future persecution. 8
12 U.S.C. § 1252(b)(4). The agency reasonably found
13 speculative Tian’s claim that he would be persecuted on his
14 return to China for his past opposition to the family
15 planning policy because he remained in China for two and a
16 half years after his beating and detention without
17 incident, his wife has remained in China without harm, and
18 he provided no evidence that the Chinese government has any
19 continued interest in him. Jian Xing Huang, 421 F.3d at
20 129; see Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d
21 Cir. 1999) (finding fear of future persecution diminished
22 when similarly-situated family members have remained).
23 Accordingly, because the agency reasonably found that Tian
5 1 failed to demonstrate a well-founded fear of persecution,
2 it did not err in denying asylum or in concluding that he
3 necessarily failed to meet the higher burdens for
4 withholding of removal and CAT relief. Y.C., 741 F.3d at
5 335.
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of removal
8 that the Court previously granted in this petition is VACATED,
9 and any pending motion for a stay of removal in this petition
10 is DISMISSED as moot. Any pending request for oral argument
11 in this petition is DENIED in accordance with Federal Rule of
12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
13 34.1(b).
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe 16 Clerk of Court