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 th day of January, two thousand eleven.

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 At-
                               torney, Office of Immigration Litiga-
                               tion, Civil Division, U.S. Department
                               of Justice, Washington, D.C.
    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 jurisdic-

tion 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.


                                    -4-
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




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