         09-3493-ag
         Lian v. Holder
                                                                                         BIA
                                                                            Gordon-Uruakpa, IJ
                                                                                A088 377 777
                           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 20 th day of July, two thousand ten.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                       Circuit Judges.
11       _______________________________________
12
13       RUI QI LIAN,
14                Petitioner,
15
16                        v.                                    09-3493-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL
20                Respondent.
21       ______________________________________
22
23
24       FOR PETITIONER:               Dehai Zhang, Flushing, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Russell J. E. Verby, Senior
28                                     Litigation Counsel; John D.
29                                     Williams, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
33
     1       UPON DUE CONSIDERATION of this petition for review of a

     2   Board of Immigration Appeals (“BIA”) decision, it is hereby

     3   ORDERED, ADJUDGED, AND DECREED that the petition for review

     4   is DENIED.

 5           Rui Qi Lian, a native and citizen of the People’s

 6       Republic of China, seeks review of a July 31, 2009, order of

 7       the BIA affirming the November 29, 2007, decision of

 8       Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa which

 9       denied his application for asylum, withholding of removal,

10       and relief under the Convention Against Torture (“CAT”).      In

11       re Rui Qi Lian, No. A088 377 777 (B.I.A. July 31, 2009),

12       aff’g No. A088 377 777 (Immig. Ct. N.Y. City Nov. 29, 2007).

13       We assume the parties’ familiarity with the underlying facts

14       and procedural history in this case.

15           Under the circumstances of this case, we review the

16       IJ’s decision as modified by the BIA decision.   See Xue Hong

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

18       2005).   The applicable standards of review are well-

19       established.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

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

21           The BIA’s finding that Lian failed to establish past

22       persecution is supported by the record, as his allegations


                                       2
 1   of a brief detention do not reach the level of persecution.

 2   See Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir.

 3   2006); Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332,

 4   341-342 (2d Cir. 2006).   Accordingly, we need not reach

 5   Lian’s argument that his actions constituted resistance to

 6   the family planning policy because even if they did, his

 7   treatment at the hands of the family planning officials did

 8   not reach a level that constitutes persecution.    See

 9   Ivanishvili, 433 F.3d at 341-342.   The agency also

10   reasonably found that Lian’s residence in China for ten

11   years following the incident undermined his claim that he

12   had a well-founded fear of future persecution.    See Melgar

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

14       Contrary to Lian’s argument, the BIA’s application of

15   Matter of J-S-, 24 I.&.N. Dec. 520 (A.G. 2008), to his

16   claims did not violate his due process rights.    See De Quan

17   Yu v. U.S. Atty. Gen., 568 F.3d 1328, 1333 (11th Cir. 2009).

18   The BIA applies the law in effect at the time it enters a

19   decision.   See 8 C.F.R. § 1003.1(d)(3)(ii); c.f. NLRB v.

20   Coca-Cola Bottling Co., 55 F.3d 74, 78 (2d Cir.

21   1995)(“Appellate courts ordinarily apply the law in effect

22   at the time of the appellate decision.”).


                                   3
 1       Because Lian was unable to demonstrate past persecution

 2   or a well-founded fear of future persecution to meet his

 3   burden for asylum, he necessarily failed to meet the higher

 4   burden required for withholding of removal.    See Paul v.

 5   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).    Lian does not

 6   challenge the agency’s denial of his application for CAT

 7   relief.

 8       For the foregoing reasons, the petition for review is

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

10   removal that the Court previously granted in this petition

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

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

13   oral argument in this petition is DENIED in accordance with

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

15   Circuit Local Rule 34.1(b).
16
17
18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk
20
21
22




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