See Yin Low v. Holder

11-5397
Low v. Holder
BIA
Laforest, IJ
A098 825 242
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 9th day of May, two thousand thirteen.
PRESENT:
ROBERT A. KATZMANN,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
_____________________________________
SEE YIN LOW,
Petitioner,
v. 11-5397
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Scott Eric Bratton, Margaret Wong &
Associates, Cleveland, OH.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Edward J. Duffy,
Senior Litigation Counsel; Deitz P.
Lefort, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner See Yin Low, a native and citizen of
Malaysia, seeks review of a December 16, 2011, order of the
BIA, affirming the June 9, 2010, decision of Immigration
Judge (“IJ”) Brigitte Laforest, which pretermitted her
application for asylum and denied withholding of removal and
relief under the Convention Against Torture (“CAT”). In re
See Yin Low, No. A098 825 242 (B.I.A. Dec. 16, 2011), aff’g
No. A098 825 242 (Immig. Ct. New York City June 9, 2010).
On appeal, Low challenges only the agency’s denial of
withholding of removal. We assume the parties’ familiarity
with the underlying facts and procedural history.
“Because the BIA adopted and affirmed the IJ’s
decision, we review the two decisions in tandem.” Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). “The
‘substantial evidence’ standard of review applies, and we
uphold the IJ’s factual findings if they are supported by
‘reasonable, substantial and probative evidence in the
record.’” Id. (citations omitted).
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In order to qualify for withholding of removal, an
applicant must "establish that . . . her life or freedom
would be threatened in the proposed country of removal on
account of race, religion, nationality, membership in a
particular social group, or political opinion." 8 C.F.R.
§ 1208.16(b). “If the applicant is determined to have
suffered past persecution in the proposed country of removal
on account of [a protected characteristic], it shall be
presumed that the applicant’s life or freedom would be
threatened in the future in the country of removal.” Id.
§ 1208.16(b)(1). In the absence of past persecution, an
applicant must show "that it is more likely than not that he
or she would be persecuted on account of race, religion,
nationality, membership in a particular social group, or
political opinion" as a result of her removal. Id.
§ 1208.16(b)(2).
Here, the agency did not err in finding that Low had
failed to establish past persecution on account of a
protected ground. In finding that Low failed to show that
her Chinese ethnicity was the reason why ethnic Malays
attacked her in 1995, the agency reasonably noted that her
assailants accused her of trying to trip them, and did not
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mention her ethnicity. See Siewe v. Gonzales, 480 F.3d 160,
168-69 (2d Cir. 2007) (affording deference to agency
findings that are “tethered to the evidentiary record”).
Although Low asserts that the incident occurred because she
is Chinese and the perpetrators were Malays, the agency did
not err in determining that her ethnicity was not a cause
for the attack, particularly given that she did not suffer
any similar attack over the course of the next five years.
See Siewe, 480 F.3d at 160 (noting that “support for a
contrary inference——even one more plausible or more
natural——does not suggest error”). Similarly, the agency
reasonably determined that the isolated incidents of
impoliteness Low suffered while training at a hotel did not
rise to the level of persecution. 8 C.F.R. § 1208.16(b)
(requiring a threat to “life or freedom”).
The agency also did not err in finding that Low failed
to establish a likelihood of future persecution. See Jian
Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding
that, in the absence of solid support in the record, a fear
of future persecution was “speculative at best”). An
applicant, such as Low, who has not suffered past
persecution may establish her eligibility for withholding of
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removal only by: (1) offering “evidence that [] she would be
singled out individually for . . . persecution”; or (2) by
proving that “there is a pattern or practice of persecution
of a group of persons similarly situated to [her].” 8
C.F.R. § 1208.16(b)(2). The agency reasonably determined
that Low failed to meet her burden because she remained in
Malaysia for five years after the 1995 attack without
incident, she did not experience any problems during her
years of education, and her father and brother have
continued to live in Malaysia without harm. See Jian Xing
Huang, 421 F.3d at 129.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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