13-663

Yu v. Holder

BIA

Videla, IJ

A098 690 900

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.

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

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 19th 4 day of May, two thousand fourteen.

5

6 PRESENT:

7 REENA RAGGI,

8 DEBRA ANN LIVINGSTON,

9 DENNY CHIN,

10 Circuit Judges. 

11 _____________________________________

12

13 YONG SEN YU,

14 Petitioner, 

15

16 v. 13-663

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Jay Ho Lee, New York, New York.

24

25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

26 General; Carl McIntyre, Assistant

27 Director; Christina Bechak

28 Parascandola, Trial Attorney, Office

29 of Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

4 review is DENIED.

5 Yong Sen Yu, a native and citizen of the People’s

6 Republic of China, seeks review of a January 29, 2013,

7 decision of the BIA affirming the March 3, 2011, decision of

8 Immigration Judge (“IJ”) Gabriel C. Videla, denying him

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Yong Sen Yu, No.

11 A098 690 900 (B.I.A. Jan. 29, 2013), aff’g No. A098 690 900

12 (Immig. Ct. N.Y. City Mar. 3, 2011). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 We have reviewed both the IJ’s and the BIA’s opinions

16 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d

17 233, 237 (2d Cir. 2008). The applicable standards of review

18 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see

19 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.

20 2009). 

21 It is undisputed that Yu is not eligible for asylum

22 solely on the basis of his wife’s forced abortion. See Shi

2
1 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-310

2 (2d Cir. 2007). Nevertheless, he can still qualify for

3 asylum or withholding of removal by demonstrating that:

4 (1) he engaged in “other resistance” to the family planning

5 policy; and (2) he suffered harm rising to the level of

6 persecution, or he had a well-founded fear or likelihood of

7 suffering such harm as a direct result of his resistance.

8 See id. at 313; see also 8 U.S.C. § 1101(a)(42); 8 C.F.R.

9 § 1208.16(b). 

10 Even assuming that Yu established “resistance,” the

11 agency did not err in finding that he failed to allege harm

12 amounting to persecution on account of that resistance.

13 Indeed, he did not demonstrate that he suffered economic

14 persecution because he failed to provide any evidence

15 establishing that the fines imposed caused him “severe

16 economic disadvantage.” In re T-Z-, 24 I. & N. Dec. 163,

17 170-75 (B.I.A. 2007); see also Guan Shan Liao v. U.S. Dep’t

18 of Justice, 293 F.3d 61, 70 (2d Cir. 2002). Furthermore,

19 the agency did not err in finding that Yu’s detention for

20 five hours, during which he was not mistreated, did not

21 constitute persecution. See Beskovic v. Gonzales, 467 F.3d

22 223, 226 n.3 (2d Cir. 2006) (noting that the Court had

3
1 previously held that two brief detentions without physical

2 mistreatment did not constitute persecution); see also

3 Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir.

4 2006). 

5 Moreover, although the IJ may have erred by failing to

6 evaluate the cumulative impact of these incidents, the BIA

7 reasonably concluded that, considered in the aggregate, the

8 harm Yu experienced did not rise to the level of

9 persecution, particularly when he did not testify to having

10 personally suffered any specific physical, mental, or

11 economic harm. See Mei Fun Wong v. Holder, 633 F.3d 64, 72

12 (2d Cir. 2011) (“We have emphasized that persecution is an

13 extreme concept that does not include every sort of

14 treatment our society regards as offensive.”) (internal

15 quotation marks omitted). Thus, the agency did not err in

16 concluding that Yu failed to establish past persecution

17 qualifying him for relief. See Shi Liang Lin, 494 F.3d at

18 309.

19 Absent past persecution, an alien may establish

20 eligibility for asylum by demonstrating a well-founded fear

21 of future persecution. See 8 C.F.R. § 1208.13(b)(2); see

22 also Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.

23 2004). The agency reasonably concluded that Yu failed to

4
1 demonstrate that his fear of future persecution was well2 founded. Yu paid a fine for having a child out of wedlock

3 and at a younger age than permitted, yet he did not

4 demonstrate that family planning officials would continue to

5 consider him in violation of the family planning policy

6 based on the birth of his one child more than twenty years

7 ago. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 142-43,

8 160 n.20, 169-70 (2d Cir. 2008); see also Jian Xing Huang v.

9 INS, 421 F.3d 125, 129 (2d Cir. 2005). Additionally, as the

10 agency found, Yu failed to submit evidence demonstrating

11 that similarly situated individuals face forced

12 sterilization. See Jian Hui Shao, 546 F.3d at 160-61; see

13 also Jian Xing Huang, 421 F.3d at 129. 

14 Accordingly, because the agency did not err in finding

15 that Yu failed to demonstrate either past persecution or a

16 well-founded fear of persecution, it reasonably denied him

17 asylum and withholding of removal because those claims were

18 based on the same factual predicate. See Paul v. Gonzales,

19 444 F.3d 148, 156-57 (2d Cir. 2006). Yu does not challenge

20 the agency’s denial of CAT relief.

21 For the foregoing reasons, the petition for review is

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

23 removal that the Court previously granted in this petition

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

2 this petition is DISMISSED as moot. Any pending request for

3 oral argument in this petition is DENIED in accordance with

4 Federal Rule of Appellate Procedure 34(a)(2), and Second

5 Circuit Local Rule 34.1(b).

6 FOR THE COURT: 

7 Catherine O’Hagan Wolfe, Clerk

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