11-5397

Low v. Holder

BIA

Laforest, IJ

A098 825 242

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

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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 Thurgood Marshall United

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

on the 9th day of May, two thousand thirteen.

PRESENT:

ROBERT A. KATZMANN,

GERARD E. LYNCH,

DENNY CHIN,

Circuit Judges.

_____________________________________

SEE YIN LOW,

Petitioner, 

 v. 11-5397

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_______________________________________

FOR PETITIONER: Scott Eric Bratton, Margaret Wong &

Associates, Cleveland, OH.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; Edward J. Duffy,

Senior Litigation Counsel; Deitz P.

Lefort, 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.

Petitioner See Yin Low, a native and citizen of

Malaysia, seeks review of a December 16, 2011, order of the

BIA, affirming the June 9, 2010, decision of Immigration

Judge (“IJ”) Brigitte Laforest, which pretermitted her

application for asylum and denied withholding of removal and

relief under the Convention Against Torture (“CAT”). In re

See Yin Low, No. A098 825 242 (B.I.A. Dec. 16, 2011), aff’g

No. A098 825 242 (Immig. Ct. New York City June 9, 2010). 

On appeal, Low challenges only the agency’s denial of

withholding of removal. We assume the parties’ familiarity

with the underlying facts and procedural history. 

“Because the BIA adopted and affirmed the IJ’s

decision, we review the two decisions in tandem.” Yanqin

Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). “The

‘substantial evidence’ standard of review applies, and we

uphold the IJ’s factual findings if they are supported by

‘reasonable, substantial and probative evidence in the

record.’” Id. (citations omitted). 

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In order to qualify for withholding of removal, an

applicant must "establish that . . . her life or freedom

would be threatened in the proposed country of removal on

account of race, religion, nationality, membership in a

particular social group, or political opinion." 8 C.F.R.

§ 1208.16(b). “If the applicant is determined to have

suffered past persecution in the proposed country of removal

on account of [a protected characteristic], it shall be

presumed that the applicant’s life or freedom would be

threatened in the future in the country of removal.” Id.

§ 1208.16(b)(1). In the absence of past persecution, an

applicant must show "that it is more likely than not that he

or she would be persecuted on account of race, religion,

nationality, membership in a particular social group, or

political opinion" as a result of her removal. Id.

§ 1208.16(b)(2).

Here, the agency did not err in finding that Low had

failed to establish past persecution on account of a

protected ground. In finding that Low failed to show that

her Chinese ethnicity was the reason why ethnic Malays

attacked her in 1995, the agency reasonably noted that her

assailants accused her of trying to trip them, and did not

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mention her ethnicity. See Siewe v. Gonzales, 480 F.3d 160,

168-69 (2d Cir. 2007) (affording deference to agency

findings that are “tethered to the evidentiary record”). 

Although Low asserts that the incident occurred because she

is Chinese and the perpetrators were Malays, the agency did

not err in determining that her ethnicity was not a cause

for the attack, particularly given that she did not suffer

any similar attack over the course of the next five years. 

See Siewe, 480 F.3d at 160 (noting that “support for a

contrary inference——even one more plausible or more

natural——does not suggest error”). Similarly, the agency

reasonably determined that the isolated incidents of

impoliteness Low suffered while training at a hotel did not

rise to the level of persecution. 8 C.F.R. § 1208.16(b)

(requiring a threat to “life or freedom”). 

The agency also did not err in finding that Low failed

to establish a likelihood of future persecution. See Jian

Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding

that, in the absence of solid support in the record, a fear

of future persecution was “speculative at best”). An

applicant, such as Low, who has not suffered past

persecution may establish her eligibility for withholding of

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removal only by: (1) offering “evidence that [] she would be

singled out individually for . . . persecution”; or (2) by

proving that “there is a pattern or practice of persecution

of a group of persons similarly situated to [her].” 8

C.F.R. § 1208.16(b)(2). The agency reasonably determined

that Low failed to meet her burden because she remained in

Malaysia for five years after the 1995 attack without

incident, she did not experience any problems during her

years of education, and her father and brother have

continued to live in Malaysia without harm. See Jian Xing

Huang, 421 F.3d at 129. 

For the foregoing reasons, the petition for review is

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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