16-976 

Ye v. Sessions 

BIA 

Bukszpan, IJ 

A200 738 536

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.

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 

5th day of January, two thousand eighteen. 

PRESENT: 

 DENNIS JACOBS,

REENA RAGGI, 

CHRISTOPHER F. DRONEY,

Circuit Judges. 

_____________________________________ 

SUN HUA YE, 

 Petitioner, 

v. 16-976 

 

JEFFERSON B. SESSIONS III, 

UNITED STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: G. VICTORIA CALLE, Calle & 

Associates, New York, NY. 

FOR RESPONDENT: KIMBERLY A. BURDGE, Trial Attorney, 

Office of Immigration Litigation 

(Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General; Song 
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Park, Senior Litigation Counsel, on 

the brief), United States Department 

of Justice, Washington, DC. 

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 Sun Hua Ye, a native and citizen of the People’s 

Republic of China, seeks review of a March 21, 2016, decision 

of the BIA affirming a December 9, 2014, decision of an 

Immigration Judge (“IJ”) denying Ye’s application for asylum, 

withholding of removal, and relief under the Convention Against 

Torture (“CAT”). In re Sun Hua Ye, No. A200 738 536 (B.I.A. 

Mar. 21, 2016), aff’g No. A200 738 536 (Immig. Ct. N.Y.C. Dec. 

9, 2014). We assume the parties’ familiarity with the 

underlying facts, the procedural history, and the issues 

presented. 

 Under the circumstances of this case, we review the IJ’s 

decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t 

of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Because the 

petition challenges only factual findings, we will grant Ye 

relief only if “no reasonable fact-finder could have” made those 

findings. Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003) 

(per curiam) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 

2000)). The principal issue raised by the petition is whether 

Ye met his burden of proving his eligibility for asylum. 

To qualify for asylum, Ye had to demonstrate that he 

(1) engaged in “other resistance” to China’s family planning 

policy, and (2) suffered harm rising to the level of persecution 

or had a well-founded fear of suffering such harm as a direct 

result of his resistance. Shi Liang Lin v. U.S. Dep’t of 

Justice, 494 F.3d 296, 313 (2d Cir. 2007) (en banc). Assuming, 

as the agency did, that Ye engaged in “other resistance” to 

China’s family-planning policy, we find no error in the agency’s 

conclusion that Ye failed to show past harm rising to the level 

of persecution or a well-founded fear of future persecution. 
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1. Ye argues that he suffered past persecution when he was 

struck twice in the chest immediately before--and additional 

times during--his 12-hour detention. In assessing whether 

physical harm rises to the level of persecution, the agency must 

take account of the context of that harm. See Jian Qiu Liu v. 

Holder, 632 F.3d 820, 822 (2d Cir. 2011) (per curiam). As we 

have acknowledged, a “minor beating . . . may rise to the level 

of persecution if it occurred in the context of an arrest or 

detention.” Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 

2006) (emphasis added) (internal quotation marks omitted). 

However, “[w]e have never held that a beating that occurs within 

the context of an arrest or detention constitutes persecution 

per se.” Jian Qiu Liu, 632 F.3d at 822. The harm suffered by 

the petitioner must be sufficiently severe, rising above “mere 

harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 

332, 341 (2d Cir. 2006). 

The agency considered the context of Ye’s harm and 

reasonably concluded that it did not rise to the level of 

persecution. Ye was punched in the chest a few times during 

a single 12-hour period, he did not require medical attention, 

and he did not suffer any lasting injuries. In Jian Qiu Liu, 

we observed that comparable physical abuse before detention was 

not persecution. See 632 F.3d at 821-22 (deeming reasonable 

the BIA’s finding of no persecution when the petitioner was 

“punched [] repeatedly in the face, chest, and back” by family 

planning officials and detained for two days, because “he 

suffered only minor bruising from [the] altercation,” “required 

no formal medical attention[,] and had no lasting physical 

effect”). The same conduct during detention warrants no 

different conclusion here. 

Ye’s citation to Edimo-Doualla v. Gonzales, in which we 

remanded for the BIA to consider whether the petitioner had been 

persecuted despite having suffered no “permanent or serious 

injury,” does not support a finding of unreasonableness in this 

case. 464 F.3d 276, 283-84 (internal quotation marks omitted). 

The petitioner in Edimo-Doualla suffered substantially greater 

harm than did Ye, including “four beatings during a 1991 arrest; 

a two-day arrest in 1996; multiple beatings and other forms of 

abuse during a three-to-five-day arrest in 1997; a brief 
4

detention . . . in 2000”; “multiple beatings in 2000 during each 

of six days that [he] was held at a police station; and a 

three-month prison term” during which he was “forced to bathe 

with a bucket of water mixed with urine.” Id. at 283. While 

Ye’s treatment was deplorable, the agency’s decision that it 

did not rise to the level of persecution was reasonable on this 

record. 

2. Ye argues that it should be inferred from the fact that 

his wife was involuntarily sterilized in China that he has a 

well-founded fear of future persecution there. However, the 

law is clear that Ye cannot automatically establish a 

well-founded fear of future persecution based on harm suffered 

by his wife. See Shi Liang Lin, 494 F.3d at 309-10. And as 

the agency reasonably concluded, Ye’s fear is not “objectively 

reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d 

Cir. 2004). There is little reason to think that Ye will face 

mistreatment rising to the level of persecution from family 

planning officials: Ye and his wife have already been punished 

for violating China’s family planning policy, and they cannot 

conceive another child together. Moreover, Ye’s wife (who 

remains in China) has suffered no harassment by the authorities 

after she paid the family planning fine. See Melgar de Torres 

v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding that a claimed 

fear of future persecution is undermined when 

similarly-situated family members remain unharmed in the 

petitioner’s native country). There is no evidence in the 

record to compel a conclusion different from the one reached 

by the agency. 

Given that the agency reasonably found that Ye failed to 

demonstrate both past persecution and a well-founded fear of 

future persecution, it did not err in denying him asylum. For 

the same reason, the agency did not err in denying Ye withholding 

of removal and relief under the CAT, both of which require even 

greater showings. Lecaj v. Holder, 616 F.3d 111, 119-20 (2d 

Cir. 2010). 

 

 We have considered all of Ye’s arguments and conclude that 

they are without merit. The petition for review is DENIED. 

Any stay of removal previously granted in this petition is 
5

VACATED, and any pending motion for a stay of removal in this 

petition is DISMISSED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk