Rui Qi Lian v. Holder , 385 F. App'x 55 ( 2010 )

09-3493-ag
Lian v. Holder
BIA
Gordon-Uruakpa, IJ
A088 377 777
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 20 th day of July, two thousand ten.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 RUI QI LIAN,
14 Petitioner,
15
16 v. 09-3493-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL
20 Respondent.
21 ______________________________________
22
23
24 FOR PETITIONER: Dehai Zhang, Flushing, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Russell J. E. Verby, Senior
28 Litigation Counsel; John D.
29 Williams, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
33
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 Rui Qi Lian, a native and citizen of the People’s
6 Republic of China, seeks review of a July 31, 2009, order of
7 the BIA affirming the November 29, 2007, decision of
8 Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa which
9 denied his application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Rui Qi Lian, No. A088 377 777 (B.I.A. July 31, 2009),
12 aff’g No. A088 377 777 (Immig. Ct. N.Y. City Nov. 29, 2007).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as modified by the BIA decision. See Xue Hong
17 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
18 2005). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
20 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 The BIA’s finding that Lian failed to establish past
22 persecution is supported by the record, as his allegations
2
1 of a brief detention do not reach the level of persecution.
2 See Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir.
3 2006); Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332,
4 341-342 (2d Cir. 2006). Accordingly, we need not reach
5 Lian’s argument that his actions constituted resistance to
6 the family planning policy because even if they did, his
7 treatment at the hands of the family planning officials did
8 not reach a level that constitutes persecution. See
9 Ivanishvili, 433 F.3d at 341-342. The agency also
10 reasonably found that Lian’s residence in China for ten
11 years following the incident undermined his claim that he
12 had a well-founded fear of future persecution. See Melgar
13 de Torres v. Reno, 191, F.3d 307, 313 (2d Cir. 1999).
14 Contrary to Lian’s argument, the BIA’s application of
15 Matter of J-S-, 24 I.&.N. Dec. 520 (A.G. 2008), to his
16 claims did not violate his due process rights. See De Quan
17 Yu v. U.S. Atty. Gen., 568 F.3d 1328, 1333 (11th Cir. 2009).
18 The BIA applies the law in effect at the time it enters a
19 decision. See 8 C.F.R. § 1003.1(d)(3)(ii); c.f. NLRB v.
20 Coca-Cola Bottling Co., 55 F.3d 74, 78 (2d Cir.
21 1995)(“Appellate courts ordinarily apply the law in effect
22 at the time of the appellate decision.”).
3
1 Because Lian was unable to demonstrate past persecution
2 or a well-founded fear of future persecution to meet his
3 burden for asylum, he necessarily failed to meet the higher
4 burden required for withholding of removal. See Paul v.
5 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Lian does not
6 challenge the agency’s denial of his application for CAT
7 relief.
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
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