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.

1 At a stated term of the United States Court of Appeals 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 3rd 4 day of October, two thousand eighteen. 

5 

6 PRESENT: 

7 PIERRE N. LEVAL,

8 ROSEMARY S. POOLER, 

9 ROBERT D. SACK, 

10 Circuit Judges. 

11 _____________________________________ 

12 

13 SHUHUI TIAN, 

14 Petitioner, 

15 

16 v. 16-3403 

17 NAC 

18 JEFFERSON B. SESSIONS III, 

19 UNITED STATES ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Farah Loftus, Los Angeles, CA. 

24 

25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

26 Attorney General; Erica B. Miles, 

27 Senior Litigation Counsel; 

28 Elizabeth K. Fitzgerald-Sambou, 

29 Trial Attorney, Office of 

30 Immigration Litigation, United 

31 States Department of Justice, 

32 Washington, DC. 
2

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 Petitioner Shuhui Tian, a native and citizen of the 

6 People’s Republic of China, seeks review of a September 21, 

7 2016, decision of the BIA affirming an October 17, 2014, 

8 decision of an Immigration Judge (“IJ”) denying Tian’s 

9 application for asylum, withholding of removal, and relief 

10 under the Convention Against Torture (“CAT”). In re Shuhui 

11 Tian, No. A200 929 153 (B.I.A. Sept. 21, 2016), aff’g No. 

12 A200 929 153 (Immig. Ct. N.Y. City Oct. 17, 2014). We assume 

13 the parties’ familiarity with the underlying facts and 

14 procedural history in this case. 

15 Under the circumstances of this case, we have reviewed 

16 the IJ’s decision as modified by the BIA and review only 

17 the ground for decision on which the BIA relied—Tian’s 

18 failure to meet his burden of proof. See Xue Hong Yang v. 

19 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 

20 The applicable standards of review are well established. 

21 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 

22 F.3d 510, 513 (2d Cir. 2009). For the reasons that follow, 

23 we conclude that the agency did not err in determining that 
3

1 Tian failed to demonstrate past persecution or a well2 founded fear of future persecution. 

3 I. Past Persecution 

4 While the Immigration and Nationality Act does not define 

5 persecution, see Baba v. Holder, 569 F.3d 79, 85 (2d Cir. 

6 2009), the BIA has defined it as a “threat to the life or 

7 freedom of, or the infliction of suffering or harm upon, those 

8 who differ in a way regarded as offensive.” Matter of Acosta, 

9 19 I. & N. Dec. 211, 222 (B.I.A. 1985), overruled in part on 

10 other grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); 

11 accord Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 

12 342 (2d Cir. 2006). “The BIA must . . . be keenly sensitive 

13 to the fact that a ‘minor beating’ or, for that matter, any 

14 physical degradation designed to cause pain, humiliation, or 

15 other suffering, may rise to the level of persecution if it 

16 occurred in the context of an arrest or detention on the basis 

17 of a protected ground.” Beskovic v. Gonzales, 467 F.3d 223, 

18 226 n.3 (2d Cir. 2006) (quoting Ivanishvili, 433 F.3d at 

19 341)). The harm must be sufficiently severe to rise above 

20 “mere harassment.” Ivanishvili, 433 F.3d at 341. 

21 The agency did not err by determining that Tian’s past 

22 harm did not rise to the level of persecution. 8 U.S.C. 

23 § 1252(b)(4) (A determination that an applicant has failed 
4

1 to meet his burden is “conclusive unless manifestly 

2 contrary to the law and an abuse of discretion.”). Tian’s 

3 alleged harm—that family planning officials pushed him into 

4 a corner, punched him in the stomach, slapped his face 

5 causing his nose to bleed, and then detained him for two 

6 days—is indistinguishable from the allegations in Jian Qiu 

7 Liu v. Holder, 632 F.3d 820 (2d Cir. 2011). In Jian Qiu 

8 Liu, we declined to remand where the agency concluded that 

9 the applicant’s past harm—being slapped in the face, 

10 punched repeatedly, and detained for two days—did not rise 

11 to the level of persecution. 632 F.3d at 821-23. 

12 Accordingly, because the agency took Tian’s subsequent 

13 detention into account when assessing the context of his 

14 beating and correctly observed that Tian was beaten before 

15 detention, was not mistreated while detained, and did not 

16 suffer any lasting injury, we find no error in the agency’s 

17 conclusion that this single incident does not constitute 

18 persecution. Id.; Beskovic, 467 F.3d at 226 (requiring 

19 agency to consider context of mistreatment). 

20 II. Future Persecution 

21 Absent past persecution, an alien may still establish 

22 eligibility for asylum by demonstrating a well-founded fear 

23 of future persecution, which is a “subjective fear that is 
5

1 objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552 

2 F.3d 277, 284 (2d Cir. 2009) (internal quotation marks 

3 omitted); see also Y.C. v. Holder, 741 F.3d 324, 332 (2d 

4 Cir. 2013) (“For an asylum claim, the applicant must show a 

5 reasonable possibility of future persecution.” (internal 

6 quotation marks omitted)). “In the absence of solid 

7 support in the record,” a fear of persecution is not well 

8 founded and “is speculative at best.” Jian Xing Huang v. 

9 U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005). 

10 The agency did not err in determining that Tian failed 

11 to establish a well-founded fear of future persecution. 8 

12 U.S.C. § 1252(b)(4). The agency reasonably found 

13 speculative Tian’s claim that he would be persecuted on his 

14 return to China for his past opposition to the family 

15 planning policy because he remained in China for two and a 

16 half years after his beating and detention without 

17 incident, his wife has remained in China without harm, and 

18 he provided no evidence that the Chinese government has any 

19 continued interest in him. Jian Xing Huang, 421 F.3d at 

20 129; see Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d 

21 Cir. 1999) (finding fear of future persecution diminished 

22 when similarly-situated family members have remained). 

23 Accordingly, because the agency reasonably found that Tian 
6

1 failed to demonstrate a well-founded fear of persecution, 

2 it did not err in denying asylum or in concluding that he 

3 necessarily failed to meet the higher burdens for 

4 withholding of removal and CAT relief. Y.C., 741 F.3d at 

5 335. 

6 For the foregoing reasons, the petition for review is 

7 DENIED. As we have completed our review, any stay of removal 

8 that the Court previously granted in this petition is VACATED, 

9 and any pending motion for a stay of removal in this petition 

10 is DISMISSED as moot. Any pending request for oral argument 

11 in this petition is DENIED in accordance with Federal Rule of 

12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

13 34.1(b). 

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe 

16 Clerk of Court