         09-4816-ag
         Lian v. Holder
                                                                                       BIA
                                                                                    Burr, IJ
                                                                               A099 525 909
                           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 15 th day of December, two thousand               ten.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DEBRA ANN LIVINGSTON,
 9                GERARD E. LYNCH,
10                      Circuit Judges.
11       ______________________________________
12
13       JING GUANG LIAN,
14                Petitioner,
15
16                                                              09-4816-ag
17                        v.                                    NAC
18
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       ______________________________________
24
25       FOR PETITIONER:               Jing Guang Lian, pro se, Bayside,
26                                     New York.
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General; Daniel E. Goldman, Senior
30                                     Litigation Counsel; Jonathan
31                                     Robbins, Attorney, Office of
 1                            Immigration Litigation, Civil
 2                            Division, United States Department
 3                            of Justice, 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, Jing Guang Lian, pro se, a native and

10   citizen of China, seeks review of an October 30, 2009,

11   decision of the BIA affirming the March 19, 2008, decision

12   of Immigration Judge (“IJ”) Sarah M. Burr denying his

13   application for asylum, withholding of removal, and relief

14   under the Convention Against Torture (“CAT”) and denying his

15   motion to remand. In re Jing Guang Lian, No. A099 525 909

16   (B.I.A. Oct. 30, 2009), aff’g No. A099 525 909 (Immig. Ct.

17   N.Y. City Mar. 19, 2008).    We assume the parties’

18   familiarity with the underlying facts and procedural history

19   of the case.

20          Under the circumstances of this case, we review the

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

22   the arguments for denying relief that were rejected by the

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

24   520, 522 (2d Cir. 2005).    Because the BIA found that the IJ



                                    2
 1   did not make an adverse credibility determination, this

 2   Court will assume credibility.    Id.; Yan Chen v. Gonzales,

 3   417 F.3d 268, 271-72 (2d Cir. 2005).     The applicable

 4   standards of review are well-established.     See 8 U.S.C.

 5   § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

 6   510, 513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep't of

 7   Justice, 421 F.3d 149, 155-56 (2d Cir. 2005).

 8       The agency correctly concluded that Lian was not

 9   eligible for asylum based solely on his wife’s alleged

10   forced abortion and IUD insertion.     See Shi Liang Lin v.

11   U.S. Dep’t of Justice, 494 F.3d 296, 309-11 (2d Cir. 2007).

12   Nonetheless, even though he was not per se eligible for

13   relief on that basis, he could have established his

14   eligibility for relief by demonstrating that he engaged in

15   “other resistance” to the family planning policy and that he

16   either suffered past persecution or had a well founded fear

17   of future persecution on account of such other resistance.

18   8 U.S.C. § 1101(a)(42); Shi Liang Lin, 494 F.3d at 309-10.

19       Even assuming, arguendo, that Lian established the

20   requisite resistance, the agency reasonably determined that

21   he failed to demonstrate past persecution or a well founded

22   fear of future persecution.   Although Lian claims that, at


                                   3
 1   the time his wife was forced to undergo an abortion, family

 2   planning officials pushed him and caused him to hit his

 3   head, the agency reasonably determined that this physical

 4   mistreatment did not constitute past persecution, as Lian

 5   was not detained at the time and did not establish that he

 6   suffered any significant harm as a result.   Ivanishvili v.

 7   U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)

 8   (holding that “the difference between harassment and

 9   persecution is necessarily one of degree that must be

10   decided on a case-by-case basis”); cf. Beskovic v. Gonzales,

11   467 F.3d 223, 226 (2d Cir. 2006) (holding that the severity

12   of physical mistreatment “must be assessed with regard to

13   the context in which the mistreatment occurs,” and that

14   conduct “that, in other contexts, could fairly be

15   characterized as ‘the mere annoyance and distress’ of

16   harassment, can take on an entirely different character when

17   officially inflicted on an individual while detained on

18   account of protected grounds”) (internal citation omitted).

19       The agency also reasonably determined that Lian failed

20   to establish that he has a well founded fear of future

21   persecution, in the form of forced sterilization.   Lian

22   failed to provide support for his fear of sterilization, as



                                  4
 1   he paid the fine assessed to him for violating the family

 2   planning policies, he remained unharmed in China for three

 3   years after his altercation with family planning officials,

 4   his wife remained in China without being forced to undergo

 5   sterilization, and a letter sent by his wife made no mention

 6   of any fear of sterilization.       See Jian Xing Huang v. INS,

 7   421 F.3d 125, 129 (2d Cir. 2005) (holding that absent “solid

 8   support in the record” for petitioner’s claim that he would

 9   be persecuted under the family planning policy, his fear was

10   “speculative at best”).   Lian’s assertion that he is

11   eligible for withholding of removal or CAT relief based on

12   his fear of imprisonment upon return to China as a result of

13   having fled China to seek asylum is unexhausted, as it was

14   not raised before the agency.       See 8 U.S.C. § 1252(d)(1);

15   Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d

16   Cir. 2007).

17       Further, the agency did not abuse its discretion in

18   denying Lian’s motion to remand to present further evidence

19   of head trauma, in light of the facts that Lian did not

20   present any medical evidence of a head injury, the hearing

21   transcript did not indicate any cognitive impairment, and

22   neither Lian nor his counsel mentioned any cognitive



                                     5
 1   problems resulting from a head injury at the merits hearing.

 2   Li Yong Cao, 421 F.3d at 156.       Lian has not explained why he

 3   was unable to present the purported medical evidence during

 4   his merits hearing.   See 8 C.F.R. § 1003.2(c)(1) (2005);

 5   8 U.S.C. § 1229a(c)(7); Norani v. Gonzales, 451 F.3d 292,

 6   294 & n.3 (2d Cir. 2006).

 7       For the foregoing reasons, the petition for review is

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

 9   removal that the Court previously granted in this petition

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

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

12   oral argument in this petition is DENIED in accordance with

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

14   Circuit Local Rule 34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk
17




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