Pursuant to Federal Rule of Appellate Procedure *

43(c)(2), Attorney General Eric H. Holder Jr. is

automatically substituted for former Attorney General

Michael B. Mukasey as respondent in this case.

08-5664-ag

Siu v. Holder

BIA

Nelson, IJ

A098 563 370

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 4 day of February, two thousand ten. th

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 BARRINGTON D. PARKER,

9 RICHARD C. WESLEY,

10 Circuit Judges.

11 _______________________________________

12

13 YUEN CHUEN SIU,

14 Petitioner, 

15

16 v. 08-5664-ag

17 NAC

18 ERIC H. HOLDER JR., UNITED STATES 

19 ATTORNEY GENERAL,*

20 Respondent.

21 _______________________________________

22

23

24

25
2

1 FOR PETITIONER: John X. Wang, New York, New York.

2

3 FOR RESPONDENT: Tony West, Assistant Attorney

4 General; Terri J. Scadron, Assistant

5 Director; Genevieve Holm, Trial

6 Attorney, Office of Immigration

7 Litigation, United States Department

8 of Justice, Washington, D.C.

9

10 UPON DUE CONSIDERATION of this petition for review of a

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

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

13 is DENIED. 

14 Yuen Chuen Siu, a native and citizen of the People’s

15 Republic of China, seeks review of a November 6, 2008 order

16 of the BIA that: (1) affirmed the October 26, 2006 decision

17 of Immigration Judge (“IJ”) Barbara A. Nelson, which

18 pretermitted his application for asylum and denied his

19 application for withholding of removal; and (2) denied his

20 motion to remand. In re Yuen Chuen Siu, No. A098 563 370

21 (B.I.A. Nov. 6, 2008), aff’g No. A098 563 370 (Immig. Ct.

22 N.Y. City Oct. 26, 2006). We assume the parties’

23 familiarity with the underlying facts and procedural history

24 in this case.

25 As an initial matter, because Siu does not challenge:

26 (1) the agency’s pretermission of his application for

27 asylum; (2) the agency’s finding that prosecution for
3

1 illegally departing China did not constitute persecution;

2 and (3) the BIA’s denial of his motion to remand, we deem

3 any such arguments abandoned. See Yueqing Zhang v.

4 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005). 

5 When the BIA does not expressly “adopt” the IJ’s

6 decision, but its brief opinion closely tracks the IJ’s

7 reasoning, the Court may consider both the IJ’s and the

8 BIA’s opinions “for the sake of completeness.” Zaman v.

9 Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). We review the

10 agency’s factual findings under the substantial evidence

11 standard. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.

12 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo

13 questions of law and the application of law to undisputed

14 fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.

15 2008). 

16 We find that the agency reasonably concluded that Siu

17 failed to demonstrate that he had suffered past persecution

18 in China. The BIA has defined persecution as “a threat to

19 the life or freedom of, or the infliction of suffering or

20 harm upon, those who differ in a way regarded as offensive.” 

21 Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985). This

22 Court has clarified that a valid past persecution claim can
4

1 be based on harm other than threats to life or freedom,

2 including non-life-threatening violence and physical abuse. 

3 Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006)

4 (citing Tian-Yong Chen v. INS, 359 F.3d 121, 128 (2d. Cir.

5 2004)). In order to constitute persecution, the alleged

6 harm must be sufficiently severe, rising above “mere

7 harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d

8 332, 341 (2d Cir. 2006). Economic harm may constitute

9 persecution, however, “an applicant for asylum must

10 demonstrate a severe economic disadvantage.” In re T-Z-, 24

11 I. & N. Dec. 163, 173 (BIA 2007). Indeed, “[t]he economic

12 difficulties must be above and beyond those generally shared

13 by others in the country of origin and involve noticeably

14 more than mere loss of social advantages or physical

15 comforts.” Id.

16 Although Siu testified before the IJ that his family

17 was deprived of food subsidies, education, medical benefits,

18 and housing in China, he provided no specific details of

19 ever being denied such benefits. Furthermore, Siu admitted

20 that when he was five years old, his family moved to Hong

21 Kong where he attended school for eleven years and suffered

22 no harm. Because Siu failed to describe any incident of
5

1 harm suffered, much less severe harm, the agency reasonably

2 determined that he did not establish that he had suffered

3 past persecution. See Ivanishvili, 433 F.3d at 341; In re

4 T-Z-, 24 I. & N. Dec. at 172-73. 

5 Similarly, the agency did not err in finding that Siu

6 failed to demonstrate a likelihood of forced sterilization

7 on account of the birth of his U.S. citizen child. Indeed,

8 in light of the fact that Siu was not in violation of

9 China’s family planning policy with the birth of his one

10 child, the agency did not err in finding speculative his

11 fear of such persecution. See Jian Xing Huang v. INS, 421

12 F.3d 125, 129 (2d Cir. 2005). Accordingly, as Siu failed to

13 demonstrate either past persecution or a likelihood of

14 future persecution, the agency did not err in denying his

15 application for withholding of removal. See 8 C.F.R. 

16 § 1208.16(b). 

17 For the foregoing reasons, the petition for review is

18 DENIED. The pending motion for a stay of removal in this

19 petition is DISMISSED as moot.

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

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