         09-2873-ag
         Zhu v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A097 701 757
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                              AMENDED 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 23 rd day of June, two thousand ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                PIERRE N. LEVAL,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       _______________________________________
12
13       YUAN SHANG ZHU, ALSO KNOWN AS YONG
14       SHANG ZHU,
15                Petitioner,
16
17                       v.                                     09-2873-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Michael Brown, Law Offices of
25                                     Michael Brown, New York, New York.
 1   FOR RESPONDENT:          Tony West, Assistant Attorney
 2                            General; Christopher C. Fuller,
 3                            Senior Litigation Counsel, Office of
 4                            Immigration Litigation; Aaron R.
 5                            Petty, Trial Attorney, Office of
 6                            Immigration Litigation, United
 7                            States Department of Justice,
 8                            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          Petitioner Yuan Shang Zhu, a native and citizen of the

15   People’s Republic of China, seeks review of a June 18, 2009

16   order of the BIA affirming the November 6, 2007 decision of

17   Immigration Judge (“IJ”) Robert D. Weisel denying his

18   application for asylum, withholding of removal, and relief

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

20   Shang Zhu, No. A097 701 757 (B.I.A. Jun. 18, 2009), aff’g

21   No. A097 701 757 (Immig. Ct. N.Y. City Nov. 6, 2007).    We

22   assume the parties’ familiarity with the underlying facts

23   and procedural history in this case.

24          Under the circumstances of this case, we review the

25   IJ’s decision as modified by the BIA decision, i.e., minus

26   the arguments for denying relief that were rejected by the

27   BIA.    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

                                    2
1    520, 522 (2d Cir. 2005).           The applicable standards of review

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

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

4    I.     Asylum and Withholding of Removal

5           A.       Past Persecution

6           Zhu argues that he suffered past persecution because he

7    was pushed and beaten on a single occasion while trying to

8    prevent family planning officials from removing his wife

9    from their home for the involuntary insertion of an IUD.

10   See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296,

11   301 (2d Cir. 2007).        Although he acknowledges that his

12   “injuries were minor” and that he did not require medical

13   attention, Zhu argues that the agency failed to consider

14   that because the beating occurred in his home, he was

15   humiliated and effectively detained. 1         However, persecution

16   is the infliction of suffering or harm on the basis of a

17   protected ground that is of sufficient severity as to rise

18   above “mere harassment” – even harassment causing


                 1
                 Although the government argues that Zhu failed to
          exhaust his claim that the humiliation he endured
          constituted persecution, Zhu challenged the IJ’s
          determination that his beating did not constitute past
          persecution before the BIA, and we do not hold a
          petitioner to “the exact contours of his argument below.”
          See Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005).

                                           3
1    substantial emotional distress.     Ivanishvili v. U.S. Dep’t

2    of Justice, 433 F.3d 332, 341 (2d Cir. 2006).     The agency

3    properly considered the context in which Zhu’s beating

4    occurred, and reasonably found that Zhu’s testimony did not

5    establish that he suffered past persecution.     See Beskovic

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

7        B.   Well-Founded Fear

8        Because the BIA considered whether Zhu established a

9    well-founded fear of persecution via sterilization as a

10   result of violating the family planning policy, we consider

11   the issue exhausted.     See Xian Tuan Ye v. DHS, 446 F.3d 289,

12   296-97 (2d Cir. 2006).     The IJ noted, however, that there is

13   no “current information or evidence to suggest that family

14   planning officials have a desire to harm [Zhu] if he returns

15   to China.”   Contrary to Zhu’s claim here, his wife’s

16   affidavit does not provide such information as it does not

17   address any current harms that he might face.     Thus, because

18   the agency reasonably noted that the record was devoid of

19   evidence suggesting “family planning officials have a desire

20   to harm him,” record evidence supports its decision.     Jian

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

22   curiam) (holding that, absent solid support in the record


                                     4
1    for the petitioner’s assertion that he would be subjected to

2    persecution, his fear was ‘speculative at best’).    And

3    because Zhu was unable to meet his burden for asylum, he has

4    necessarily failed to meet the higher burden required for

5    withholding of removal.    See Paul v. Gonzales, 444 F.3d 148,

6    156 (2d Cir. 2006).

7    II.   CAT Relief

8          Although Zhu sets forth the standard for CAT relief in

9    his brief before this Court, he does not challenge the basis

10   of the IJ’s denial of CAT relief – that he did not meet his

11   burden of showing that he would be subject to anything

12   amounting to torture – or otherwise argue that any evidence

13   established a likelihood of torture upon his return to

14   China.    Accordingly, we deem any challenge to the agency’s

15   denial of CAT relief waived.    Yueqing Zhang v. Gonzales, 426

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

17         For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

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

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

22   oral argument in this petition is DENIED in accordance with


                                    5
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34(b).
3
4
5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
8
9




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