11-2920-ag Hua v. Holder BIA Hom, IJ A088 917 233 

### 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 24th day of July, two thousand twelve.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **BARRINGTON D. PARKER,** 8 **RAYMOND J. LOHIER, Jr.,** 9 Circuit Judges**.** 10

**_________________________________________** 11 12 **LU JIN HUA,** 13 Petitioner**,** 14 15 **v. 11-2920-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_________________________________________** 21 22 **FOR PETITIONER: Thomas V. Massucci, New York,** 23 **New York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Michael P. Lindemann,** 27 **Assistant Director; Glen T. Jaeger,** 28 **Trial Attorney, Office of** 292 **Immigration Litigation, United** 1 **States Department of Justice,** 2 **Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Lu Jin Hua, a native and citizen of the 9 People’s Republic of China, seeks review of a June 22, 2011, 10 order of the BIA, affirming the March 24, 2009, decision of 11 an Immigration Judge (“IJ”) which denied her application for 12 asylum, withholding of removal, and relief under the 13 Convention Against Torture (“CAT”). In re Lu Jin Hua , No. 14 A088 917 233 (B.I.A. June 22, 2011), aff’gNo. A088 917 233 15 (Immig. Ct. N.Y. City Mar. 24, 2009). We assume the 16 parties’ familiarity with the underlying facts and 17 procedural history in this case. 18 We review the decision of the IJ as modified by the 19
BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 20 2005). The applicable standards of review are well 21 established. See8 U.S.C. § 1252(b)(4)(B); see also Yanqin 22 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 23
243 **I. Past Harm** 1 To establish past persecution “on account of” a 2 political opinion, an asylum applicant must demonstrate that 3 the persecution arises from her own political opinion, 4 actual or imputed. See INS v. Elias-Zacarias, 502 U.S. 478, 5 482 (1992). The applicant must also show, through direct or 6 circumstantial evidence, that the persecutor’s motive to 7 persecute arises from the applicant’s political belief. See 8 Rodas Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010). 9 The agency reasonably determined that Hua had failed to 10 demonstrate that the harm she suffered was on account of a 11 protected ground because Hua testified that Chinese 12 authorities detained her for questioning and interrogation 13 as to her mother’s whereabouts, and that she was released 14 with instructions to report back her mother’s location, not 15 that the authorities had targeted her because they thought 16 she was a Falun Gong practitioner. See Tao Jiang v. 17 Gonzales, 500 F.3d 137, 142 (2d Cir. 2007) (finding no nexus 18 to a protected ground where alien adduced no evidence that 19 government actors imputed to alien his mother’s political 20 opinion). 21
224 The BIA also did not err in determining that the harm 1 Hua alleged–being arrested, detained, and slapped twice in 2 the face–did not rise to the level of persecution, 3 particularly because Hua did not testify that she required 4 medical treatment or suffered any lasting physical effects 5 as a result. See Jian Qiu Liu v. Holder, 632 F.3d 820, 822 6 (2d Cir. 2011) (no error in BIA’s finding that a beating 7 resulting in minor bruising for which medical treatment was 8 not sought did not rise to the level of persecution); 9 Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir. 2006) 10 (brief periods of detention do not constitute persecution). 11
**II. Well-Founded Fear** 12 Hua also argues that she has demonstrated a well13 founded fear of persecution because she is a member of a 14 social group consisting of the families of Falun Gong 15 practitioners, and because the Chinese government will 16 persecute her if she is removed. The agency reasonably 17 found that Hua failed to meet her burden of proof regarding 18 her Falun Gong practice, because her witness could not tell 19 the difference between Falun Gong and other exercises and 20 had not attended any demonstrations with her. See 8 U.S.C. 21 § 1158(b)(1)(B)(ii); Diallo v. INS, 232 F.3d 279, 285-86 (2d 225 Cir. 2000) (deferring to the BIA’s rule that “[w]hile 1 consistent, detailed, and credible testimony may be 2 sufficient to carry the alien’s burden, evidence 3 corroborating [her] story, or an explanation for its 4 absence, may be required where reasonably expected.”); Xiao 5 Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 342 (2d Cir. 6 2006) (the weight afforded to an applicant’s evidence in 7 proceedings lies largely within the discretion of the 8 agency). The agency did not err in declining to credit 9 Hua’s only additional proof of her Falun Gong practice, as 10 her photographs were undated and only of her practicing 11 Falun Gong in her home. Id. 12 Finally, the agency reasonably rejected Hua’s claim 13 that she will be persecuted on account of her illegal 14 departure from China because she was previously permitted to 15 leave China passing through checkpoints using her own 16 passport and presented no other evidence to support this 17 claim. See Mu-Xing Wang v. Ashcroft , 320 F.3d 130, 133-34 18 (2d Cir. 2003) (mandating a case-by-case factual inquiry 19 into whether an illegal departure would result in 20 persecution). Ultimately, because the agency did not err in 21 concluding that Hua failed to establish past persecution or 22 a well-founded fear of persecution if removed to China, it 236 did not err in deying asylum, withholding of removal, and 1 CAT relief as the claims shared the same factual predicate. 2 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) 3 (withholding of removal); Xue Hong Yang v. U.S. Dep’t of 4 Justice , 426 F.3d 520, 523 (2d Cir. 2006) (CAT). 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our review, any stay of 7 removal that the Court previously granted in this petition 8 is VACATED, and any pending motion for a stay of removal in 9 this petition is DISMISSED as moot. Any pending request for 10 oral argument in this petition is DENIED in accordance with 11 Federal Rule of Appellate Procedure 34(a)(2), and Second 12 Circuit Local Rule 34.1(b). 13
FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16