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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

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

4 New York, on the 24th day of July, two thousand twelve.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 BARRINGTON D. PARKER, 

9 RAYMOND J. LOHIER, Jr.,

10 Circuit Judges.

11 _________________________________________

12

13 LU JIN HUA,

14 Petitioner, 

15

16 v. 11-2920-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL, 

20 Respondent.

21 _________________________________________

22

23 FOR PETITIONER: Thomas V. Massucci, New York, 

24 New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Michael P. Lindemann,

28 Assistant Director; Glen T. Jaeger,

29 Trial Attorney, Office of
2

1 Immigration Litigation, United

2 States Department of Justice,

3 Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Petitioner Lu Jin Hua, a native and citizen of the

10 People’s Republic of China, seeks review of a June 22, 2011,

11 order of the BIA, affirming the March 24, 2009, decision of

12 an Immigration Judge (“IJ”) which denied her application for

13 asylum, withholding of removal, and relief under the

14 Convention Against Torture (“CAT”). In re Lu Jin Hua, No.

15 A088 917 233 (B.I.A. June 22, 2011), aff’g No. A088 917 233

16 (Immig. Ct. N.Y. City Mar. 24, 2009). We assume the

17 parties’ familiarity with the underlying facts and

18 procedural history in this case. 

19 We review the decision of the IJ as modified by the

20 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

21 2005). The applicable standards of review are well

22 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

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

24
3

1 I. Past Harm

2 To establish past persecution “on account of” a

3 political opinion, an asylum applicant must demonstrate that

4 the persecution arises from her own political opinion,

5 actual or imputed. See INS v. Elias-Zacarias, 502 U.S. 478,

6 482 (1992). The applicant must also show, through direct or

7 circumstantial evidence, that the persecutor’s motive to

8 persecute arises from the applicant’s political belief. See

9 Rodas Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010). 

10 The agency reasonably determined that Hua had failed to

11 demonstrate that the harm she suffered was on account of a

12 protected ground because Hua testified that Chinese

13 authorities detained her for questioning and interrogation

14 as to her mother’s whereabouts, and that she was released

15 with instructions to report back her mother’s location, not

16 that the authorities had targeted her because they thought

17 she was a Falun Gong practitioner. See Tao Jiang v.

18 Gonzales, 500 F.3d 137, 142 (2d Cir. 2007) (finding no nexus

19 to a protected ground where alien adduced no evidence that

20 government actors imputed to alien his mother’s political

21 opinion).

22
4

1 The BIA also did not err in determining that the harm

2 Hua alleged–being arrested, detained, and slapped twice in

3 the face–did not rise to the level of persecution,

4 particularly because Hua did not testify that she required

5 medical treatment or suffered any lasting physical effects

6 as a result. See Jian Qiu Liu v. Holder, 632 F.3d 820, 822

7 (2d Cir. 2011) (no error in BIA’s finding that a beating

8 resulting in minor bruising for which medical treatment was

9 not sought did not rise to the level of persecution); 

10 Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir. 2006)

11 (brief periods of detention do not constitute persecution).

12 II. Well-Founded Fear

13 Hua also argues that she has demonstrated a well14 founded fear of persecution because she is a member of a

15 social group consisting of the families of Falun Gong

16 practitioners, and because the Chinese government will

17 persecute her if she is removed. The agency reasonably

18 found that Hua failed to meet her burden of proof regarding

19 her Falun Gong practice, because her witness could not tell

20 the difference between Falun Gong and other exercises and

21 had not attended any demonstrations with her. See 8 U.S.C.

22 § 1158(b)(1)(B)(ii); Diallo v. INS, 232 F.3d 279, 285-86 (2d
5

1 Cir. 2000) (deferring to the BIA’s rule that “[w]hile

2 consistent, detailed, and credible testimony may be

3 sufficient to carry the alien’s burden, evidence

4 corroborating [her] story, or an explanation for its

5 absence, may be required where reasonably expected.”); Xiao

6 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

7 2006) (the weight afforded to an applicant’s evidence in

8 proceedings lies largely within the discretion of the

9 agency). The agency did not err in declining to credit

10 Hua’s only additional proof of her Falun Gong practice, as

11 her photographs were undated and only of her practicing

12 Falun Gong in her home. Id.

13 Finally, the agency reasonably rejected Hua’s claim

14 that she will be persecuted on account of her illegal

15 departure from China because she was previously permitted to

16 leave China passing through checkpoints using her own

17 passport and presented no other evidence to support this

18 claim. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 133-34

19 (2d Cir. 2003) (mandating a case-by-case factual inquiry

20 into whether an illegal departure would result in

21 persecution). Ultimately, because the agency did not err in

22 concluding that Hua failed to establish past persecution or

23 a well-founded fear of persecution if removed to China, it
6

1 did not err in deying asylum, withholding of removal, and

2 CAT relief as the claims shared the same factual predicate. 

3 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006)

4 (withholding of removal); Xue Hong Yang v. U.S. Dep’t of

5 Justice, 426 F.3d 520, 523 (2d Cir. 2006) (CAT). 

6 For the foregoing reasons, the petition for review is

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

8 removal that the Court previously granted in this petition

9 is VACATED, and any pending motion for a stay of removal in

10 this petition is DISMISSED as moot. Any pending request for

11 oral argument in this petition is DENIED in accordance with

12 Federal Rule of Appellate Procedure 34(a)(2), and Second

13 Circuit Local Rule 34.1(b).

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

16