1 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 LOCA L 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 1 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, 2 on the 7 thday of September, two thousand eleven. 3 4 PRESENT: 5 6 DEBRA ANN LIVINGSTON, 7 RAYMOND J. LOHIER, J R ., 8 SUSAN L. CARNEY, 9 10 Circuit Judges

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_______________________________________________ 12 13 ZHONG HUA YAN, 14 15 Petitioner, 16 -v.- No. 10-1625-ag 17 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent

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C HARLES C HRISTOPHE , Christophe & Associates, P.C., New 23 York, New York, for Petitioner

. 24 25 T IMOTHY G. H AYES , Trial Attorney, Office of Immigration 26 Litigation (Keith I. McManus, Senior Litigation Counsel, on 272 the brief ), for Tony West, Assistant Attorney General, Civil 1 Division, U.S. Department of Justice, Washington, D.C., for 2 Respondent

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UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED 4 that the petition for review is DENIED. 5 Petitioner Zhong Hua Yan, a native and citizen of China, seeks review of an April 6, 2010, 6 decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from the May 21, 7 2008, decision of Immigration Judge (“IJ”) Douglas B. Schoppert, which denied his application for 8 asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). In re 9 Zhong Hua Yan , No. A098 323 866 (B.I.A. Apr. 6, 2010), dismissing appeal fromNo. A098 323 866 10 (Immig. Ct. N.Y. City May 21, 2008). We assume th e parties’ familiarity with the underlying facts 11 and procedural history. 12 “When the BIA issues an opinion, ‘the opinion becomes the basis for judicial review of the 13 decision of which the alien is complaining.’” Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 14 2005) (quoting Niam v. Ashcroft , 354 F.3d 652, 655 (7th Cir. 2004)). Where the BIA adopts certain 15 aspects of the IJ’s decision but declines to adopt others, we review the IJ’s decision as modified by 16 the BIA. See Ming Xia Chen v. BIA , 435 F.3d 141, 144 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t 17 of Justice , 426 F.3d 520, 522 (2d Cir. 2005). We review the factual findings of the IJ and BIA under 18 the “substantial evidence” standard, which treat s them as “conclusive unless any reasonable 19 adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also 20 Su Chun Hu v. Holder, 579 F.3d 155, 158 (2d Cir. 2009). “[T]he ‘substantial evidence’ standard 21 requires that the factual findings be supported by ‘reasonable, substantial and probative evidence 221 Yan expressly attests that he is not seeking review of those parts of the BIA’s decision: 1) pretermitting his asylum application; 2) denyi ng his withholding of removal claim based on his father’s persecution during the Cultural Revoluti on; and 3) denying his w ithholding claim based on his membership in a particular social group. We therefore do not consider them. 3 in the record.”’ Su Chun Hu , 579 F.3d at 158 (quoting Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 1 104, 116 (2d Cir. 2006)). We review questions of law and the appli cation of law to undisputed fact 2 de novo

. Bah v. Mukasey , 529 F.3d 99, 110 (2d Cir. 2008). 3 Yan primarily argues that the BIA erred in concluding that the injuries suffered by Yan 4 during his encounter with the family planning officials did not amount to persecution. 1 We disagree. 5 The BIA reasonably considered the circumstances of Yan’s beating and determined that the 6 mistreatment he suffered was not suffi ciently severe to constitute persecution. See Beskovic v. 7 Gonzales , 467 F.3d 223, 226 (2d Cir. 2006)

. The difference between harassment and persecution 8 is “necessarily one of degree”; the degree must be assessed “with regard to the context in which the 9 mistreatment occurs.” Id. (internal quotation marks omitted). Thus, we have cautioned that “[t]he 10 BIA must . . . be keenly sensitive tothe fact that a ‘minor beating’ or . . . any physical degradation 11 designed to cause pain, humiliation, or other suffering, may rise to the level of persecution if it 12 occurred in the context of an arrest or detention on the basis of a protected ground.” Id. 13 In Jian Qiu Liu v. Holder , 632 F.3d 820 (2d Cir. 2011) (per curiam), we held – under facts 14 similar to those of this case – that “[t]he BIA di d not err in concluding that [the petitioner] failed to 15 demonstrate his eligibility for asylum on account of his alleged resistance to the family planning 16 policy.” Id. at 821. Here, as in Jian Qiu Liu , Yan suffered injuries “ prior to his arrest and detention 17 by local police . . . from an altercation with familyplanning officials,” and those injuries “required 18 no formal medical attention.” Id. at 822. In addition, Yan “prese nted no evidence that the family 194 planning officials who physically attacked him had any intention of arresting or detaining him,” and 1 “[t]he altercation occurred only when [Yan] attemp ted to prevent the family planning officials from 2 taking his wife, and [Yan] was later arrested by local police.” Id. Yan also did not testify that he 3 was mistreated or beaten during his detention. See Ai Feng Yuan v. U.S. Dep’t of Justice , 416 F.3d 4 192, 198 (2d Cir. 2005) (“[M]inor beatings and brief de tention, even detentions lasting two or three 5 days, do not amount to political persecuti on.” (internal quotation marks omitted)), overruled in part 6 on other grounds , Shi Liang Lin v. U.S. Dep’t of Justice , 494 F.3d 296 (2d Cir. 2007) (en banc). The 7 BIA therefore did not err in concluding that Yan’s in juries and detention did not rise to the level of 8 persecution. Further, that Yan remained in China for 15 years after this incident, and that his wife 9 remains there to this day, without further reporte d harassment, lend further support to the proposition 10 that his injuries and brief detention in 1989 did not constitute persecution. 11 Because the BIA reasonably concluded that Yan did not establish past persecution, Yan is 12 not entitled to a presumption of future persecution. See 8 C.F.R. § 1208.16(b)(1)(i); Ramsameachire 13 v. Ashcroft , 357 F.3d 169, 178 (2d Cir. 2004). Yan’s contention that the government failed to rebut 14 this presumption is therefore moot. As Yan does notargue here that he is eligible for withholding 15 of removal because it is “more likely than not” that he will be persecuted if returned to China, see 16 8 C.F.R. § 1208.16(b)(2), we deem this argument waived. See Norton v. Sam’s Club , 145 F.3d 114, 17 117 (2d Cir. 1998). We therefore conclude that the BIA did not err in denying Yan’s application 18 for withholding of removal. See8 U.S.C. § 1231(b)(3). In addition, because Yan’s CAT claim is 19 based on the same factual predicate as his withhol ding of removal claim, his CAT claim must also 20 fail. See Xue Hong Yang , 426 F.3d at 522-23. 215 For the foregoing reasons, the petition for review is DENIED. The stay of removal granted 1 in this petition is VACATED. 2 3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5 6