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10-1625-ag

Zhong Hua Yan v. Holder

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 for the Second Circuit, held at the

2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 7th 3 day of September, two thousand eleven.

4

5 PRESENT:

6

7 DEBRA ANN LIVINGSTON,

8 RAYMOND J. LOHIER, JR.,

9 SUSAN L. CARNEY,

10

11 Circuit Judges.

12 _______________________________________________

13

14 ZHONG HUA YAN, 

15

16 Petitioner,

17 -v.- No. 10-1625-ag

18

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent.

22 _______________________________________________

23 CHARLES CHRISTOPHE, Christophe & Associates, P.C., New

24 York, New York, for Petitioner.

25

26 TIMOTHY G. HAYES, Trial Attorney, Office of Immigration

27 Litigation (Keith I. McManus, Senior Litigation Counsel, on
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1 the brief), for Tony West, Assistant Attorney General, Civil

2 Division, U.S. Department of Justice, Washington, D.C., for

3 Respondent.

4 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

5 that the petition for review is DENIED.

6 Petitioner Zhong Hua Yan, a native and citizen of China, seeks review of an April 6, 2010,

7 decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from the May 21,

8 2008, decision of Immigration Judge (“IJ”) Douglas B. Schoppert, which denied his application for

9 asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). In re

10 Zhong Hua Yan, No. A098 323 866 (B.I.A. Apr. 6, 2010), dismissing appeal from No. A098 323 866

11 (Immig. Ct. N.Y. City May 21, 2008). We assume the parties’ familiarity with the underlying facts

12 and procedural history.

13 “When the BIA issues an opinion, ‘the opinion becomes the basis for judicial review of the

14 decision of which the alien is complaining.’” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

15 2005) (quoting Niam v. Ashcroft, 354 F.3d 652, 655 (7th Cir. 2004)). Where the BIA adopts certain

16 aspects of the IJ’s decision but declines to adopt others, we review the IJ’s decision as modified by

17 the BIA. See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t

18 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review the factual findings of the IJ and BIA under

19 the “substantial evidence” standard, which treats them as “conclusive unless any reasonable

20 adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also

21 Su Chun Hu v. Holder, 579 F.3d 155, 158 (2d Cir. 2009). “[T]he ‘substantial evidence’ standard

22 requires that the factual findings be supported by ‘reasonable, substantial and probative evidence
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 Yan expressly attests that he is not seeking review of those parts of the BIA’s decision: 1)

pretermitting his asylum application; 2) denying his withholding of removal claim based on his

father’s persecution during the Cultural Revolution; and 3) denying his withholding claim based on

his membership in a particular social group. We therefore do not consider them. 

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1 in the record.”’ Su Chun Hu, 579 F.3d at 158 (quoting Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

2 104, 116 (2d Cir. 2006)). We review questions of law and the application of law to undisputed fact

3 de novo. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). 

4 Yan primarily argues that the BIA erred in concluding that the injuries suffered by Yan

during his encounter with the family planning officials did not amount to persecution.1 5 We disagree.

6 The BIA reasonably considered the circumstances of Yan’s beating and determined that the

7 mistreatment he suffered was not sufficiently severe to constitute persecution. See Beskovic v.

8 Gonzales, 467 F.3d 223, 226 (2d Cir. 2006). The difference between harassment and persecution

9 is “necessarily one of degree”; the degree must be assessed “with regard to the context in which the

10 mistreatment occurs.” Id. (internal quotation marks omitted). Thus, we have cautioned that “[t]he

11 BIA must . . . be keenly sensitive to the fact that a ‘minor beating’ or . . . any physical degradation

12 designed to cause pain, humiliation, or other suffering, may rise to the level of persecution if it

13 occurred in the context of an arrest or detention on the basis of a protected ground.” Id.

14 In Jian Qiu Liu v. Holder, 632 F.3d 820 (2d Cir. 2011) (per curiam), we held – under facts

15 similar to those of this case – that “[t]he BIA did not err in concluding that [the petitioner] failed to

16 demonstrate his eligibility for asylum on account of his alleged resistance to the family planning

17 policy.” Id. at 821. Here, as in Jian Qiu Liu, Yan suffered injuries “prior to his arrest and detention

18 by local police . . . from an altercation with family planning officials,” and those injuries “required

19 no formal medical attention.” Id. at 822. In addition, Yan “presented no evidence that the family
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1 planning officials who physically attacked him had any intention of arresting or detaining him,” and

2 “[t]he altercation occurred only when [Yan] attempted to prevent the family planning officials from

3 taking his wife, and [Yan] was later arrested by local police.” Id. Yan also did not testify that he

4 was mistreated or beaten during his detention. See Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d

5 192, 198 (2d Cir. 2005) (“[M]inor beatings and brief detention, even detentions lasting two or three

6 days, do not amount to political persecution.” (internal quotation marks omitted)), overruled in part

7 on other grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (en banc). The

8 BIA therefore did not err in concluding that Yan’s injuries and detention did not rise to the level of

9 persecution. Further, that Yan remained in China for 15 years after this incident, and that his wife

10 remains there to this day, without further reported harassment, lend further support to the proposition

11 that his injuries and brief detention in 1989 did not constitute persecution. 

12 Because the BIA reasonably concluded that Yan did not establish past persecution, Yan is

13 not entitled to a presumption of future persecution. See 8 C.F.R. § 1208.16(b)(1)(i); Ramsameachire

14 v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). Yan’s contention that the government failed to rebut

15 this presumption is therefore moot. As Yan does not argue here that he is eligible for withholding

16 of removal because it is “more likely than not” that he will be persecuted if returned to China, see

17 8 C.F.R. § 1208.16(b)(2), we deem this argument waived. See Norton v. Sam’s Club, 145 F.3d 114,

18 117 (2d Cir. 1998). We therefore conclude that the BIA did not err in denying Yan’s application

19 for withholding of removal. See 8 U.S.C. § 1231(b)(3). In addition, because Yan’s CAT claim is

20 based on the same factual predicate as his withholding of removal claim, his CAT claim must also

21 fail. See Xue Hong Yang, 426 F.3d at 522-23. 
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1 For the foregoing reasons, the petition for review is DENIED. The stay of removal granted

2 in this petition is VACATED.

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4 FOR THE COURT:

5 Catherine O’Hagan Wolfe, Clerk

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