09-5156-ag

Chang v. Holder

BIA

LaForest, IJ

A096 485 622

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

for the Second Circuit, held at the Daniel Patrick Moynihan

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

New York, on the 24 day of January, two thousand eleven. th

PRESENT:

JON O. NEWMAN,

REENA RAGGI,

DEBRA ANN LIVINGSTON,

 Circuit Judges.

_______________________________________

KOK WEE CHANG, 

Petitioner, 

 v. 09-5156-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Meer M. M. Rahman, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney General;

Jennifer Levings, Senior Litigation

Counsel; Dalin R. Holyoak, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department

of Justice, Washington, D.C.
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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.

The Petitioner, Kok Wee Chang, a native and citizen of

Malaysia, seeks review of a November 16, 2009, order of the

BIA affirming the February 28, 2008, decision of Immigration

Judge (“IJ”) Brigitte LaForest pretermitting his application

for asylum, and denying his application for withholding of

removal and relief under the Convention Against Torture

(“CAT”). In re Kok Wee Chang, No. A096 485 622 (B.I.A. Nov.

16, 2009), aff’g No. A096 485 622 (Immig. Ct. N.Y. City Feb.

28, 2008). As Chang does not address the pretermission of his

untimely asylum petition on appeal, we deem that issue

forfeited. See Yueqinq Zhang v. Gonzales, 426 F.3d 540, 541

n.1 (2d Cir. 2005). In any event, we generally lack jurisdiction to review pretermission of an untimely application. See

8 U.S.C. § 1158(a)(3). In these circumstances we do not

consider Chang’s other arguments in support of his eligibility

for asylum. We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

Under the circumstances of this case, we consider both
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the IJ’s and the BIA’s opinions for the sake of completeness.

Jigme Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524,

528 (2d Cir. 2006). The applicable standards of review are

well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

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

Substantial evidence supports the IJ’s determination that

Chang failed to establish his eligibility for withholding of

removal. Although Chang argues that he established his

eligibility for withholding of removal based on “previous

violence” he endured as a Buddhist and social tensions in

Malaysia, the IJ reasonably found that the incidents of

harassment Chang had suffered did not rise to the level of

persecution and that he feared returning to Malaysia because

it would be difficult to find a job and obtain medical care

for his children. See Ivanishvili v. U.S. Dep’t of Justice,

433 F.3d 332, 341 (2d Cir. 2006) (providing that in order to

constitute persecution, the alleged past harm must be

sufficiently severe, rising above “mere harassment”). Because

Chang failed to demonstrate that he suffered past persecution

or articulate any likelihood of persecution on account of a

protected ground, the IJ did not err in determining that Chang

did not establish his eligibility for withholding of removal.
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See 8 C.F.R. § 1208.16(b). We decline to address Chang’s

unexhausted arguments that there exists a pattern or practice

of persecution against Buddhists in Malaysia and that he is

eligible for relief based on his race. See Lin Zhong v. U.S.

Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). 

The IJ also did not err in determining that Chang did not

establish his eligibility for CAT relief. Chang’s argument

that the IJ failed to separately analyze his CAT claim is

without merit, as the IJ explicitly found that he offered no

testimony or evidence establishing a likelihood of torture

upon his return to Malaysia. Moreover, despite Chang’s bald

assertion that the IJ’s decision was not supported by the

record, he points to no specific evidence that contradicts any

of the IJ’s findings, and we presume that the IJ “has taken

into account all of the evidence before [her], unless the

record compellingly suggests otherwise.” Xiao Ji Chen v.

United States DOJ, 471 F.3d 315, 337 n.17 (2d Cir. 2006).

Thus, because Chang provided no evidence or testimony in

support of his CAT claim and because that claim was based on

the same factual predicate as his withholding of removal

claim, the IJ reasonably determined that Chang failed to

establish a likelihood of torture upon his return to Malaysia.
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See Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554, 567 (2d Cir.

2006)(“[T]orture requires proof of something more severe than

the kind of treatment that would suffice to prove

persecution.”).

For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk