16-3403 Tian v. Sessions BIA Vomacka, IJ A200 929 153 

### 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** 1 **for the Second Circuit, held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 3 rd**  **day of October, two thousand eighteen.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL,** 7 **ROSEMARY S. POOLER,** 8 **ROBERT D. SACK,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **SHUHUI TIAN,** 13 Petitioner **,** 14 15 **v. 16-3403** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Farah Loftus, Los Angeles, CA. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Erica B. Miles, 26 Senior Litigation Counsel; 27 Elizabeth K. Fitzgerald-Sambou, 28 Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Shuhui Tian, a native and citizen of the 5 People’s Republic of China, seeks review of a September 21, 6 2016, decision of the BIA affirming an October 17, 2014, 7 decision of an Immigration Judge (“IJ”) denying Tian’s 8 application for asylum, withholding of removal, and relief 9 under the Convention Against Torture (“CAT”). In re Shuhui 10 Tian, No. A200 929 153 (B.I.A. Sept. 21, 2016), aff’g No. 11 A200 929 153 (Immig. Ct. N.Y. City Oct. 17, 2014). We assume 12 the parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 the IJ’s decision as modified by the BIA and review only 16 the ground for decision on which the BIA relied—Tian’s 17 failure to meet his burden of proof. See Xue Hong Yang v. 18 U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). 19 The applicable standards of review are well established. 20
See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder , 562 21 F.3d 510, 513 (2d Cir. 2009). For the reasons that follow, 22 we conclude that the agency did not err in determining that 233Tian failed to demonstrate past persecution or a well1 founded fear of future persecution. 2 I. Past Persecution 3 While the Immigration and Nationality Act does not define 4 persecution, see Baba v. Holder , 569 F.3d 79, 85 (2d Cir. 5 2009), the BIA has defined it as a “threat to the life or 6 freedom of, or the infliction of suffering or harm upon, those 7 who differ in a way regarded as offensive.” Matter of Acosta , 8 19 I. & N. Dec. 211, 222 (B.I.A. 1985), overruled in part on 9 other grounds by INS v. Cardoza-Fonseca , 480 U.S. 421 (1987); 10 accord Ivanishvili v. U.S. Dep’t of Justice , 433 F.3d 332, 11 342 (2d Cir. 2006). “The BIA must . . . be keenly sensitive 12 to the fact that a ‘minor beating’ or, for that matter, any 13 physical degradation designed to cause pain, humiliation, or 14 other suffering, may rise to the level of persecution if it 15 occurred in the context of an arrest or detention on the basis 16 of a protected ground.” Beskovic v. Gonzales , 467 F.3d 223, 17 226 n.3 (2d Cir. 2006) (quoting Ivanishvili , 433 F.3d at 18 341)). The harm must be sufficiently severe to rise above 19 “mere harassment.” Ivanishvili , 433 F.3d at 341. 20 The agency did not err by determining that Tian’s past 21 harm did not rise to the level of persecution. 8 U.S.C. 22 § 1252(b)(4) (A determination that an applicant has failed 234 to meet his burden is “conclusive unless manifestly 1 contrary to the law and an abuse of discretion.”). Tian’s 2 alleged harm—that family planning officials pushed him into 3 a corner, punched him in the stomach, slapped his face 4 causing his nose to bleed, and then detained him for two 5 days—is indistinguishable from the allegations in Jian Qiu 6 Liu v. Holder , 632 F.3d 820 (2d Cir. 2011). In Jian Qiu 7 Liu , we declined to remand where the agency concluded that 8 the applicant’s past harm—being slapped in the face, 9 punched repeatedly, and detained for two days—did not rise 10 to the level of persecution. 632 F.3d at 821-23. 11 Accordingly, because the agency took Tian’s subsequent 12 detention into account when assessing the context of his 13 beating and correctly observed that Tian was beaten before 14 detention, was not mistreated while detained, and did not 15 suffer any lasting injury, we find no error in the agency’s 16 conclusion that this single incident does not constitute 17 persecution. Id. ; Beskovic , 467 F.3d at 226 (requiring 18 agency to consider context of mistreatment). 19 II. Future Persecution 20 Absent past persecution, an alien may still establish 21 eligibility for asylum by demonstrating a well-founded fear 22 of future persecution, which is a “subjective fear that is 235 objectively reasonable.” Dong Zhong Zheng v. Mukasey , 552 1 F.3d 277, 284 (2d Cir. 2009) (internal quotation marks 2 omitted); see also Y.C. v. Holder , 741 F.3d 324, 332 (2d 3 Cir. 2013) (“For an asylum claim, the applicant must show a 4 reasonable possibility of future persecution.” (internal 5 quotation marks omitted)). “In the absence of solid 6 support in the record,” a fear of persecution is not well 7 founded and “is speculative at best.” Jian Xing Huang v. 8
U.S. INS , 421 F.3d 125, 129 (2d Cir. 2005). 9 The agency did not err in determining that Tian failed 10 to establish a well-founded fear of future persecution. 8 11 U.S.C. § 1252(b)(4). The agency reasonably found 12 speculative Tian’s claim that he would be persecuted on his 13 return to China for his past opposition to the family 14 planning policy because he remained in China for two and a 15 half years after his beating and detention without 16 incident, his wife has remained in China without harm, and 17 he provided no evidence that the Chinese government has any 18 continued interest in him. Jian Xing Huang , 421 F.3d at 19 129; see Melgar de Torres v. Reno , 191 F.3d 307, 313 (2d 20 Cir. 1999) (finding fear of future persecution diminished 21 when similarly-situated family members have remained). 22 Accordingly, because the agency reasonably found that Tian 236 failed to demonstrate a well-founded fear of persecution, 1 it did not err in denying asylum or in concluding that he 2 necessarily failed to meet the higher burdens for 3 withholding of removal and CAT relief. Y.C. , 741 F.3d at 4 335. 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our rev iew, any stay of removal 7 that the Court previously granted in this petition is VACATED, 8 and any pending motion for a stay of removal in this petition 9 is DISMISSED as moot. Any pending request for oral argument 10 in this petition is DENIED in accordance with Federal Rule of 11 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 12 34.1(b). 13
FOR THE COURT: 14 Catherine O’Hagan Wolfe 15 Clerk of Court 16