    12-2284
    Ai-Yun v. Holder
                                                                                  BIA
                                                                            Zagzoug, IJ
                                                                          A087 765 760
                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT
                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 30th day of October, two thousand thirteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             DEBRA ANN LIVINGSTON,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    GAI AI-YUN,
             Petitioner,

                       v.                                  12-2284
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Michael Brown, New York, NY.

    FOR RESPONDENT:               Stuart F. Delery, Principal Deputy
                                  Assistant Attorney General; Greg D.
                                  Mack, Senior Litigation Counsel;
                                  Wendy Benner-León, Trial Attorney;
                                  Office of Immigration Litigation,
                                  United States 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.

     Petitioner Gai Ai-Yun, a native and citizen of the

People’s Republic of China, seeks review of a May 16, 2012,

decision of the BIA (1) affirming the February 15, 2011,

decision of Immigration Judge (“IJ”) Randa Zagzoug, which

denied her application for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”); and

(2) denying her motion to reopen and remand. In re Gai Ai-

Yun, No. A087 765 760 (B.I.A. May 16, 2012), aff’g No. A087

765 760 (Immig. Ct. N.Y.C. Feb. 15, 2011). We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

I.   Asylum, Withholding of Removal, and CAT Relief

     We review the IJ’s decision to the extent it was

adopted by the BIA and assume Ai-Yun’s credibility. See Xue

Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

Cir. 2005). “The ‘substantial evidence’ standard of review

applies, and we uphold the IJ's factual findings if they are

supported by reasonable, substantial and probative evidence



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in the record.” Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

Cir. 2009) (citation and internal quotation marks omitted);

see also 8 U.S.C. § 1252(b)(4)(B). “By contrast, we review

de novo questions of law and the BIA’s application of law to

undisputed fact.” Yanqin Weng, 562 F.3d at 513 (brackets and

internal quotation marks omitted).

    In this case, Ai-Yun seeks asylum, withholding of

removal, and relief under CAT based on her claim that she

was detained and beaten by Chinese police and feared future

persecution and torture due to her participation in an

underground Christian church in China.   Persecution is “the

infliction of suffering or harm upon those who differ on the

basis of a protected statutory ground.” Ivanishvili v. U.S.

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

this harm must be sufficiently severe, rising above “mere

harassment.”   Id.

    Accepting Ai-Yun’s account of her detention, the BIA

found that the context of the harm she suffered — a single,

three-day detention and only minor bruising not requiring

formal medical care — was such that the mistreatment, even

considered cumulatively, did not constitute persecution.

See Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011)


                             3
(“We have never held that a beating that occurs within the

context of an arrest or detention constitutes persecution

per se. Rather, we have held that . . . the agency must be

‘keenly sensitive’ to context in evaluating whether the harm

suffered rises to the level of persecution.” (quoting

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

We discern no error in this determination, and so conclude

that the BIA acted reasonably in deciding that the harm Ai-

Yun suffered did not constitute past persecution and

therefore could not support her asylum application.

    Ai-Yun also contends that she has a well-founded fear

of future persecution because, she claims, the Chinese

government is aware that she had attended an underground

church and because Chinese officials came to look for her

after she fled. However, Ai-Yun did not present any credible

evidence that the Chinese government continues to seek to

harm her, and her pastor and other church members remained

in China without being arrested, suggesting that Ai-Yun

likewise would not be targeted upon her return. See

Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008);

Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).

Accordingly, the BIA did not err in finding that Ai-Yun did

not establish a well-founded fear of future persecution.

                             4
      Because Ai-Yun is unable to show the objective

likelihood of persecution needed to make out an asylum

claim, she is necessarily unable to meet the higher standard

required to succeed on a claim for withholding of removal.

See Melgar de Torres, 191 F.3d at 311-12. Moreover, because

Ai-Yun’s CAT claim is based on the same factual predicate as

her asylum claim, she cannot show that it is more likely

than not that she will be tortured by the Chinese

government. See Xue Hong Yang, 426 F.3d at 523.

II.   Motion to Remand

      While her appeal was pending before the BIA, Ai-Yun

submitted additional evidence, which the BIA treated as a

motion to reopen and remand and then denied. “The BIA has

broad discretion to deny a motion to remand grounded on new

evidence,” and we review the BIA’s denial of such a motion

for abuse of discretion.   Li Yong Cao v. U.S. Dep't of

Justice, 421 F.3d 149, 156-57 (2d Cir. 2005) (citing INS v.

Doherty, 502 U.S. 314, 323 (1992)). “Permissible reasons to

deny such a motion include (1) the movant’s failure to make

a prima facie case of eligibility for asylum; [and] (2) the

movant’s failure to comply with the requirement of 8 C.F.R.

§ 3.2(c)(1) that [her] motion articulate material,

previously unavailable evidence that would be introduced at
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a new hearing . . . .” Id. at 156. To establish a prima

facie case, a petitioner has “the heavy burden of

demonstrating that the proffered new evidence would likely

alter the result in her case” and must show “a realistic

chance” of obtaining relief upon reopening.   See Jian Hui

Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008) (internal

quotation marks omitted).

    In this case, Ai-Yun submitted an affidavit from her

sister, a New York resident, that reiterated Ai-Yun’s

testimony regarding the harm she suffered in China, but Ai-

Yun fails to credibly explain either why the affidavit was

previously unavailable or how it would alter the results of

her case.   Accordingly, the BIA did not abuse its discretion

in denying Ai-Yun’s motion to remand.

    For the foregoing reasons, the petition for review is

DENIED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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