13-663 Yu v. Holder BIA Videla, IJ A098 690 900 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SUMMA RY 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**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 19 th** **day of May, two thousand fourteen.** 4 5 **PRESENT:** 6 **REENA RAGGI,** 7 **DEBRA ANN LIVINGSTON,** 8 **DENNY CHIN,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **YONG SEN YU,** 13 Petitioner**,** 14 15 **v. 13-663** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Jay Ho Lee, New York, New York.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 25 **General; Carl McIntyre, Assistant** 26 **Director; Christina Bechak** 27 **Parascandola, Trial Attorney, Office** 28 **of Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 31UPON DUE CONSIDERATION of this petition for review of a 1 decision of the Board of Immigration Appeals (“BIA”), it is 2 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 3 review is DENIED. 4 Yong Sen Yu, a native and citizen of the People’s 5 Republic of China, seeks review of a January 29, 2013, 6 decision of the BIA affirming the March 3, 2011, decision of 7 Immigration Judge (“IJ”) Gabriel C. Videla, denying him 8 asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Yong Sen Yu , No. 10 A098 690 900 (B.I.A. Jan. 29, 2013),aff’gNo. A098 690 900 11 (Immig. Ct. N.Y. City Mar. 3, 2011). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 in this case. 14 We have reviewed both the IJ’s and the BIA’s opinions 15 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 16 233, 237 (2d Cir. 2008). The applicable standards of review 17 are well-established. See8 U.S.C. § 1252(b)(4)(B); see 18 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 19 2009). 20 It is undisputed that Yu is not eligible for asylum 21 solely on the basis of his wife’s forced abortion. See Shi 22

2Liang Lin v. U.S. Dep’t of Justice , 494 F.3d 296, 309-310 1 (2d Cir. 2007). Nevertheless, he can still qualify for 2 asylum or withholding of removal by demonstrating that: 3 (1) he engaged in “other resistance” to the family planning 4 policy; and (2) he suffered harm rising to the level of 5 persecution, or he had a well-founded fear or likelihood of 6 suffering such harm as a direct result of his resistance. 7
See id. at 313; see also 8 U.S.C. § 1101(a)(42); 8 C.F.R. 8 § 1208.16(b). 9 Even assuming that Yu established “resistance,” the 10 agency did not err in finding that he failed to allege harm 11 amounting to persecution on account of that resistance. 12 Indeed, he did not demonstrate that he suffered economic 13 persecution because he failed to provide any evidence 14 establishing that the fines imposed caused him “severe 15 economic disadvantage.” In re T-Z- , 24 I. & N. Dec. 163, 16 170-75 (B.I.A. 2007);see also Guan Shan Liao v. U.S. Dep’t 17 of Justice , 293 F.3d 61, 70 (2d Cir. 2002). Furthermore, 18 the agency did not err in finding that Yu’s detention for 19 five hours, during which he was not mistreated, did not 20 constitute persecution. See Beskovic v. Gonzales , 467 F.3d 21 223, 226 n.3 (2d Cir. 2006) (noting that the Court had 22

3previously held that two brief detentions without physical 1 mistreatment did not constitute persecution); see also 2 Joaquin-Porras v. Gonzales , 435 F.3d 172, 182 (2d Cir. 3 2006). 4 Moreover, although the IJ may have erred by failing to 5 evaluate the cumulative impact of these incidents, the BIA 6 reasonably concluded that, considered in the aggregate, the 7 harm Yu experienced did not rise to the level of 8 persecution, particularly when he did not testify to having 9 personally suffered any specific physical, mental, or 10 economic harm. See Mei Fun Wong v. Holder, 633 F.3d 64, 72 11 (2d Cir. 2011) (“We have emphasized that persecution is an 12 extreme concept that does not include every sort of 13 treatment our society regards as offensive.”) (internal 14 quotation marks omitted). Thus, the agency did not err in 15 concluding that Yu failed to establish past persecution 16 qualifying him for relief. See Shi Liang Lin , 494 F.3d at 17 309. 18 Absent past persecution, an alien may establish 19 eligibility for asylum by demonstrating a well-founded fear 20 of future persecution. See 8 C.F.R. § 1208.13(b)(2); see 21 also Ramsameachire v. Ashcroft , 357 F.3d 169, 178 (2d Cir. 22 2004). The agency reasonably concluded that Yu failed to 23
4demonstrate that his fear of future persecution was well1 founded. Yu paid a fine for having a child out of wedlock 2 and at a younger age than permitted, yet he did not 3 demonstrate that family planning officials would continue to 4 consider him in violation of the family planning policy 5 based on the birth of his one child more than twenty years 6

ago. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 142-43, 7 160 n.20, 169-70 (2d Cir. 2008); see also Jian Xing Huang v. 8
INS , 421 F.3d 125, 129 (2d Cir. 2005). Additionally, as the 9 agency found, Yu failed to submit evidence demonstrating 10 that similarly situated individuals face forced 11 sterilization. See Jian Hui Shao , 546 F.3d at 160-61; see 12 also Jian Xing Huang, 421 F.3d at 129. 13 Accordingly, because the agency did not err in finding 14 that Yu failed to demonstrate either past persecution or a 15 well-founded fear of persecution, it reasonably denied him 16 asylum and withholding of removal because those claims were 17 based on the same factual predicate. See Paul v. Gonzales , 18 444 F.3d 148, 156-57 (2d Cir. 2006). Yu does not challenge 19 the agency’s denial of CAT relief. 20 For the foregoing reasons, the petition for review is 21 DENIED. As we have completed our review, any stay of 22 removal that the Court previously granted in this petition 23 5is VACATED, and any pending motion for a stay of removal in 1 this petition is DISMISSED as moot. Any pending request for 2 oral argument in this petition is DENIED in accordance with 3 Federal Rule of Appellate Procedure 34(a)(2), and Second 4 Circuit Local Rule 34.1(b). 5
FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 8 9

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