Jian She Wang v. Holder ( 2011 )

10-4996-ag
Wang v. Holder
BIA
Morace, IJ
A088 777 238
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 22nd day of November, two thousand eleven.
5
6 PRESENT:
7 ROBERT D. SACK,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 JIAN SHE WANG,
14 Petitioner,
15
16 v. 10-4996-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Jian She Wang, pro se, Bayside, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; David V. Bernal, Assistant
28 Director; Yedidya Cohen, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, 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
4 is DENIED.
5 Jian She Wang, a native and citizen of China, seeks
6 review of a November 19, 2010, order of the BIA affirming
7 the November 25, 2008, decision of Immigration Judge (“IJ”)
8 Philip L. Morace, which denied his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Jian She Wang, No. A088 777
11 238 (B.I.A. Nov. 19, 2010), aff’g No. A088 777 238 (Immig.
12 Ct. N.Y. City Nov. 25, 2008). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 of this case.
15 We have reviewed the decision of the IJ as modified and
16 supplemented by the BIA. See Xue Hong Yang v. U.S. Dep't of
17 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
18 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
19 standards of review are well-established. See Salimatou Bah
20 v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); Shu Wen Sun v.
21 BIA, 510 F.3d 377, 379 (2d Cir. 2007).
22 Under 8 U.S.C. § 1101(a)(42), an individual who was not
23 personally subject to a forced abortion or sterilization may
2
1 still establish eligibility for asylum by showing that he
2 engaged in “other resistance to a coercive population
3 control program,” and that, as a result of that resistance,
4 he was persecuted. Shi Liang Lin v. U.S. Dep’t of Justice,
5 494 F.3d 296, 308 (2d Cir. 2007)(en banc); see also Matter
6 of J-S-, 24 I. & N. Dec. 520, 536-37 (A.G. 2008) (adopting
7 the holding in Shi Liang Lin).
8 The agency reasonably concluded that any harm Wang
9 suffered did not rise to the level of persecution. The BIA
10 has defined persecution as a “threat to the life or freedom
11 of, or the infliction of suffering or harm upon, those who
12 differ in a way regarded as offensive.” Matter of Acosta,
13 19 I. & N. Dec. 211, 222 (BIA 1985), overruled, in part, on
14 other grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);
15 accord Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332,
16 342 (2d Cir. 2006). The harm must be sufficiently severe,
17 rising above “mere harassment.” Ivanishvili, 433 F.3d at18 341. Here, the record shows that Wang was punched in the
19 stomach three times by a police officer and detained for
20 five hours, did not suffer any injury necessitating medical
21 treatment, and did not suffer any harm while he was in
22 detention other than that his “whole face was whitish.”
3
1 Wang presented no evidence that he suffered any additional
2 harm after his detention, and, in fact, testified that he
3 remained at his place of employment and was sent to the
4 United States on a conference for work. Accordingly, the
5 agency properly concluded that the harm suffered did not
6 constitute persecution. See Jian Qiu Lin v. Holder, 632
7 F.3d 820, 822 (2d Cir. 2011) (explaining that “a beating
8 that occurs within the context of an arrest or detention
9 [does not] constitute[] persecution per se”); Mei Fun Wong
10 v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (persecution is
11 “an extreme concept that does not include every sort of
12 treatment our society regards as offensive.”).
13 Because the agency properly concluded that Wang did not
14 suffer past persecution, he is not entitled to a presumption
15 of future persecution. See 8 C.F.R. § 208.13(b)(1).
16 Because Wang’s claim of possible sterilization relies mainly
17 upon past harm, the agency reasonably concluded that he
18 failed to meet his burden of establishing a well-founded
19 fear of future persecution. See Jian Xing Huang v. INS, 421
20 F.3d 125, 129 (2d Cir. 2005) (concluding that a fear is not
21 objectively reasonable if it lacks “solid support” in the
22 record and is merely “speculative at best”). Because Wang
4
1 did not demonstrate past persecution, or a well-founded fear
2 of future persecution, the agency did not err in denying his
3 applications for asylum and withholding of removal, which
4 shared the same factual predicate. See Paul v. Gonzales,
5 444 F.3d 148, 156-57 (2d Cir. 2006).
6 Finally, we decline to address Wang’s allegation that
7 he will be persecuted or tortured for leaving the country
8 without permission, inasmuch as it was not raised before the
9 agency. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004)
10 (to preserve a claim for judicial review, petitioners must
11 also raise to the BIA the specific issues they later raise
12 in this Court); Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
13 104, 119-20 (2d Cir. 2007) (while not jurisdictional, this
14 judicially imposed exhaustion requirement is mandatory).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of
17 removal that the Court previously granted in this petition
18 is VACATED, and any pending motion for a stay of removal in
19 this petition is DISMISSED as moot. Any pending request for
20 oral argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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