Da Yong Piao v. Lynch ( 2016 )

14-3177
Piao v. Lynch
BIA
Vomacka, IJ
A205 427 772
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 25th day of August, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 DA YONG PIAO,
14 Petitioner,
15
16 v. 14-3177
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jed S. Wasserman, Law Office of Ng
24 & Wasserman, PLLC, New York, New
25 York.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; Linda
29 S. Wernery, Assistant Director;
30 Susan Bennett Green, Senior
31 Litigation Counsel, Office of
32 Immigration Litigation, United
33 States Department of Justice,
34 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 is
4 DENIED.
5 Da Yong Piao, a native and citizen of the People’s Republic
6 of China, seeks review of a July 29, 2014, decision of the BIA
7 affirming the October 12, 2012, decision of an Immigration Judge
8 (“IJ”), denying his application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Da Yong Piao, No. A205 427 772 (B.I.A. July 29,
11 2014), aff’g No. A205 427 772 (Immig. Ct. N.Y. City Oct. 12,
12 2012). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and the BIA’s opinions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). The applicable standards of review are well
18 established. 8 U.S.C. § 1252(b)(4)(B); Su Chun Hu v. Holder,
19 579 F.3d 155, 158 (2d Cir. 2009).
20 I. Past Persecution
21 To establish eligibility for asylum and withholding of
22 removal, an “applicant must establish that race, religion,
1 nationality, membership in a particular social group, or
2 political opinion was or will be at least one central reason
3 for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i);
4 8 U.S.C. § 1231(b)(3)(A); In re J-B-N- and S-M-, 24 I. & N. Dec.
5 208, 212-14 (B.I.A. 2007). Past persecution can be based on
6 harm other than threats to life or freedom, including
7 “non-life-threatening violence and physical abuse.” Beskovic
8 v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006) (citing
9 Tian-Yong Chen v. U.S. INS, 359 F.3d 121, 128 (2d Cir. 2004)).
10 However, the harm must be sufficiently severe to rise above
11 “mere harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433
12 F.3d 332, 341 (2d Cir. 2006). In order for economic harm to
13 constitute persecution, the harm must be “severe,” but an
14 applicant “need not demonstrate a total deprivation of
15 livelihood or a total withdrawal of all economic opportunity
16 in order to demonstrate harm amounting to persecution.” In re
17 T-Z-, 24 I. & N. Dec. 163, 170-73 (B.I.A. 2007); see also Guan
18 Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.
19 2002) (requiring an applicant to present testimony or evidence
20 of his financial situation in order to show “that he suffered
21 a ‘deliberate imposition of substantial economic
3
1 disadvantage.’” (quoting Yong Hao Chen v. U.S. INS, 195 F.3d
2 198, 204 (2d Cir. 1999)).
3 Here, the agency reasonably found that Piao did not suffer
4 persecution when police detained him for a short period of time
5 without harm, fined him a small amount, and closed his
6 restaurant. See Beskovic, 467 F.3d at 226 & n.3; see also
7 Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir. 2006);
8 see also Guan Shan Liao, 293 F.3d at 70. Even considered in
9 the aggregate, see Poradisova v. Gonzales, 420 F.3d 70, 79-80
10 (2d Cir. 2005), these incidents did not amount to persecution,
11 see Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011).
12 The agency also did not err in determining that Piao failed
13 to demonstrate that police targeted him on account of a
14 protected ground as required for asylum and withholding of
15 removal. See 8 U.S.C. § 1158(b)(1)(B)(i); 8 U.S.C.
16 § 1231(b)(3)(A). Piao admitted that he had illegally employed
17 a North Korean refugee and that this formed the basis for his
18 arrest. And he did not assert any facts from which it could
19 be inferred that police were motivated to detain him as a pretext
20 for suppressing his political opinion (resistance to China’s
21 North Korean immigration policies). See Jin Jin Long v.
22 Holder, 620 F.3d 162, 166, 168 (2d Cir. 2010).
4
1 II. Fear of Future Persecution
2 Absent past persecution, an alien may establish
3 eligibility for asylum by demonstrating a well-founded fear of
4 future persecution, 8 C.F.R. § 1208.13(b)(2), which must be both
5 subjectively credible and objectively reasonable,
6 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
7 To demonstrate a well-founded fear, an applicant must show
8 either that he would be singled out for persecution or that the
9 country of removal has a pattern or practice of persecuting
10 those similarly situated to him. 8 C.F.R. § 1208.13(b)(2)(iii).
11 The agency did not err in finding that Piao failed to establish
12 a well-founded fear of persecution on account of his practice
13 of Christianity in an unregistered church in China.
14 Piao fears persecution because police arrested and fined
15 members of his unregistered church in China. However, given
16 that his fellow church members did not suffer harm rising to
17 the level of persecution based on their detentions without harm
18 and small fines, the IJ reasonably found that Piao did not show
19 that similarly situated individuals face persecution. See
20 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)
21 (finding an asylum applicant’s well-founded fear claim weakened
22 when similarly situated family members remain unharmed in the
5
1 applicant’s native country). Accordingly, Piao’s claim that
2 he will be singled out for persecution is speculative. See Jian
3 Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005).
4 There is no merit to Piao’s argument that the 2011 U.S.
5 Department of State’s International Religious Freedom Report
6 demonstrates a pattern or practice of persecution against
7 Christians in China. That report states that tens of millions
8 of Christians practice in unregistered churches in China and
9 that government officials do not interfere with practitioners
10 in some regions. See 8 C.F.R. § 1208.13(b)(2)(iii); see also
11 In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005).
12 Because Piao failed to demonstrate past persecution or a
13 well-founded fear of persecution on account of his political
14 opinion or practice of Christianity, the agency did not err in
15 denying asylum and withholding of removal. See Paul v.
16 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). Therefore, we
17 do not consider the agency’s alternative basis for denying those
18 forms of relief (its adverse credibility determination). See
19 INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule
20 courts and agencies are not required to make findings on issues
21 the decision of which is unnecessary to the results they
22 reach.”).
6
1 Finally, we are without jurisdiction to consider Piao’s
2 argument that he is eligible for CAT relief. He failed to
3 exhaust before the BIA any specific challenge to the IJ’s denial
4 of that form of relief, and the BIA did not excuse his failure
5 to exhaust by considering the merits of his claim. See Karaj
6 v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006); see also Xian
7 Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument
13 in this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
7