09-5213-ag 

Yong v. Holder 

 BIA

Weisel, IJ

A98 901 817 

A96 695 846

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.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of New

York, on the 17th day of November, two thousand ten.

PRESENT:

JON O. NEWMAN,

GUIDO CALABRESI,

ROBERT A. KATZMANN,

 Circuit Judges.

_______________________________________

KIM SENG YONG, LEE KUAN CHOONG,

Petitioners, 

 v. 09-5213-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONERS: Edward J. Cuccia, Ferro & Cuccia, New

York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney General;

Jennifer Levings, Senior Litigation
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Counsel; Nancy K. Canter, Trial

Attorney, Office of Immigration

Litigation, United States Department

of Justice, Washington, D.C.

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.

Kim Seng Yong and Lee Kuan Choong, natives and citizens

of Malaysia, seek review of a November 20, 2009, decision of

the BIA affirming the July 9, 2008, decision of Immigration

Judge (“IJ”) Robert D. Weisel, which denied their applications

for withholding of removal and relief under the Convention

Against Torture (“CAT”). In re Kim Seng Yong, Lee Kuan

Choong, Nos. A098 901 817, A096 695 846 (B.I.A. Nov. 20,

2009), aff’g Nos. A098 901 817, A096 695 846 (Immig. Ct. N.Y.

City July 9, 2008). We assume the parties’ familiarity with

the underlying facts and procedural history in this case.

Under the circumstances of this case, we review the

decision of the IJ as supplemented by the BIA. See Yan Chen

v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable

standards of review are well-established. See 8 U.S.C.

§ 1252(b)(4)(B); see also Salimatou Bah v. Mukasey, 529 F.3d

99, 110 (2d Cir. 2008); Manzur v. DHS, 494 F.3d 281, 289 (2d
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Cir. 2007). The only issue before us is whether the agency

erred in denying Petitioners’ application for withholding of

removal since the CAT claim is not raised on appeal.

Substantial evidence supports the agency’s decision

denying Petitioners’ application for withholding of removal.

Persecution is defined as a “threat to the life or freedom of,

or the infliction of suffering or harm upon, those who differ

in a way regarded as offensive.” Matter of Acosta, 19 I. & N.

Dec. 211, 222 (BIA 1985), overruled, in part, on other

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

Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d

Cir. 2006). The harm must be sufficiently severe, rising

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

Economic harm may constitute persecution. See In re T-Z-, 24

I. & N. Dec. 163, 173 (BIA 2007). Indeed, “[t]he economic

difficulties must be above and beyond those generally shared

by others in the country of origin and involve noticeably more

than mere loss of social advantages or physical comforts.”

Id.

In this case, the agency considered cumulatively Yong’s

claim that he was the subject of racial epithets, was chased

out of a rural area, and experienced discrimination at school,
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and reasonably concluded that such harm constituted harassment

not rising to the level of persecution. See Ivanishvili, 433

F.3d at 341. Moreover, the agency reasonably found that the

Petitioners failed to demonstrate that their inability to

obtain a vendor license caused them severe economic

disadvantage amounting to economic persecution, particularly

when his family owned a business and he was able to afford

travel to Thailand frequently for religious pilgrimages. See

In re T-Z-, 24 I. & N. Dec. at 173. Therefore, the agency did

not err in finding that the harm Petitioners suffered did not

rise to the level of persecution or economic persecution.

Ivanishvili, 433 F.3d at 341; In re T-Z-, 24 I. & N. Dec. at

173. Petitioners do not raise any challenge to the agency’s

finding that they failed to demonstrate a likelihood of future

persecution other than their conclusory assertion that they

will suffer harm similar to that which they suffered in the

past. Accordingly, we conclude that the agency did not err in

denying Petitioners’ application for withholding of removal.

See 8 C.F.R. § 1208.16(b).

For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,
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and any pending motion for a stay of removal in this petition

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

this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk