    11-3264
    Lin v. Holder
                                                                                  BIA
                                                                               Burr, IJ
                                                                          A088 533 455
                      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 25th day of March, two thousand fourteen.

    PRESENT:
             JON O. NEWMAN,
             RALPH K. WINTER,
             ROSEMARY S. POOLER,
                  Circuit Judges.
    _____________________________________

    ZHI LIN,
                    Petitioner,

                    v.                                     11-3264
                                                           NAC
    ERIC H. HOLDER JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                Peter Lobel, New York, NY

    FOR RESPONDENT:                Tony West, Assistant Attorney
                                   General; Blair T. O’Connor,
                                   Assistant Director; John B. Holt,
                                   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.

    Zhi Lin, a native and citizen of the People’s Republic

of China, seeks review of a July 12, 2011, order of the BIA,

affirming the August 13, 2009, decision of Immigration Judge

(“IJ”) Sarah Burr, which denied his application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”).   In re Zhi Lin, No. A088 533 455

(B.I.A. July 12, 2011), aff’g No. A088 533 455 (Immig. Ct.

N.Y. City Aug. 13, 2009). We assume the parties’ familiarity

with the underlying facts and procedural history in this

case.

    Under the circumstances of this case, we review both

the IJ’s and BIA’s decisions.       See Zaman v. Mukasey, 514

F.3d 233, 237 (2d Cir. 2008).       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).

    The agency reasonably concluded that Lin failed to

establish that the harm he suffered on account of his

resistence to China’s coercive family planning policy was

sufficiently severe to rise to the level of past

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persecution.   Lin testified that he sustained bruises after

family planning officials beat him, but that he had visited

a traditional herbalist who only needed herbs to treat his

bruises, and that family planning officials permitted his

family to visit him in detention and to bring him food and

blankets.   See Ivanishvili v. U.S. Dep’t of Justice, 433

F.3d 332, 341 (2d Cir. 2006) (stating that the harm alleged

must be sufficiently severe, rising above “mere

harassment”); Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d

Cir. 2011) (holding that petitioner failed to establish

persecution where “he suffered only minor bruising from an

altercation with family planning officials, which required

no formal medical attention and had no lasting physical

effect”).

    Although Lin argues that, in finding that the injuries

he suffered during his physical altercation with family

planning officials were minor, the BIA failed to consider

the context in which the mistreatment occurred, Lin’s

argument is unavailing.    As the BIA expressly noted, it had

given special consideration to the fact that Lin had been

detained and mistreated.    Moreover, although we have

cautioned that “[t]he BIA must . . . be keenly sensitive to


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the fact that a ‘minor beating’ or . . . any physical

degradation designed to cause pain, humiliation, or other

suffering, may rise to the level of persecution if it

occurred in the context of an arrest or detention on the

basis of a protected ground,” Beskovic v. Gonzales, 467 F.3d

223, 226 (2d Cir. 2006), the record confirms that Lin’s

beating occurred prior to his detention by family planning

officials, and Lin did not allege that he was beaten or

otherwise mistreated during his two-day detention.     See Jian

Qiu Liu, 632 F.3d at 822 (finding no error in BIA’s

conclusion that petitioner failed to establish past

persecution where he suffered a minor beating by family

planning officials “prior to his arrest and detention by

local police”).

    Finally, although Lin suggests that the emotional and

psychological harm that he suffered as a result of his

wife’s forced abortion constitutes persecution, as the IJ

properly noted, Lin cannot establish persecution based

solely upon his wife’s forced abortion.   See Shi Liang Lin

v. U.S. Dep’t of Justice, 494 F.3d 296, 309-10 (2d Cir.

2007).   Further, any emotional or psychological harm that

Lin suffered because of his wife’s abortion does not


                              4
constitute persecution of Lin.    See Tao Jiang v. Gonzales,

500 F.3d 137, 141-43 (2d Cir. 2007).

    The agency also reasonably determined that Lin failed

to establish a well-founded fear of future persecution on

account of his resistance to China’s coercive family

planning policy.   See 8 C.F.R. § 1208.16(b)(1);

Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

As the agency found, Lin’s testimony that he remained in

China for three years following his release from detention

and that his wife and son continued to live unharmed in

China undermined the objective reasonableness of his claimed

fear of future persecution.   See Jiang Xing Huang v. INS,

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

support in the record” for a petitioner’s assertion that he

would be persecuted under the family planning policy, his

fear was “speculative at best”); Melgar de Torres v. Reno,

191 F.3d 307, 313 (2d Cir. 1999) (finding that an

applicant’s fear of persecution was undermined when his

family remained in the native country unharmed).     Finally,

although Lin contends that he has a well-founded fear of

future persecution because officials threatened that he

would be sterilized if he violated China’s family planning

policy in the future, we have previously “rejected

                              5
[persecution] claims involving ‘unfulfilled threats.’” Gui

Ci Pan v. Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir.

2006).

    Accordingly, the agency reasonably denied Lin’s

application for asylum.   Because he failed to meet the

burden of asylum, Lin necessarily failed to meet the higher

burden for withholding of removal and CAT relief, as those

claims were based on the same factual predicate.

See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.   The pending motion for a stay of removal is

DISMISSED as moot.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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