         08-5117-ag (L); 09-0273-ag (Con)
         Zhu v. Holder
                                                                                         BIA
                                                                                 McManus, IJ
                                                                                A 098 355 930
                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 14 th day of December, two thousand                nine.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                        Chief Judge,
 9                ROGER J. MINER,
10                DEBRA ANN LIVINGSTON,
11                        Circuit Judges.
12       ______________________________________
13
14       YU YONG ZHU,
15                Petitioner,
16
17                           v.                                 08-5117-ag (L);
18                                                              09-0273-ag (Con)
19                                                              NAC
20       ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
21                Respondent.
22
23       ______________________________________


                      *
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONER:         Alexander Kwok-Ho Yu, New York, New
 2                           York.
 3
 4   FOR RESPONDENT:         Tony West, Assistant Attorney
 5                           General; James A. Hunolt, Senior
 6                           Litigation Counsel; Patrick J. Glen,
 7                           Trial Attorney, United States
 8                           Department of Justice, Office of
 9                           Immigration Litigation, Washington,
10                           D.C.
11
12        UPON DUE CONSIDERATION of this petition for review of a

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

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

15   is DENIED.

16        Petitioner Yu Yong Zhu, a native and citizen of China,

17   seeks review of a September 18, 2008 order of the BIA

18   reversing the March 22, 2007 decision of Immigration Judge

19   (“IJ”) Margaret McManus granting Zhu’s application for

20   asylum.   In re Yu Yong Zhu, No. A 098 355 930 (B.I.A. Sept.

21   18, 2008), rev’g No. A 098 355 930 (Immig. Ct. N.Y. City

22   Mar. 22, 2007).   Additionally, Zhu seeks review of a

23   December 19, 2008 order of the BIA denying his motion to

24   reconsider its September 2008 order. In re Yu Yong Zhu, No.

25   A 098 355 930 (B.I.A. Dec. 19, 2008).   We assume the

26   parties’ familiarity with the underlying facts and

27   procedural history of the case.

28   I.   Dkt. No. 08-5117-ag (L): The BIA’s September 2008 Order

29        When the BIA does not adopt the decision of the IJ to

                                   2
1    any extent, this Court reviews only the decision of the BIA.

2    See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

3    We review the BIA’s factual findings under the substantial

4    evidence standard.     8 U.S.C. § 1252(b)(4)(B); see also

5    Manzur v. DHS, 494 F.3d 281, 289 (2d Cir. 2007). We review

6    de novo questions of law and the application of law to

7    undisputed fact.     See Salimatou Bah v. Mukasey, 529 F.3d 99,

8    110 (2d Cir. 2008).

9        As a preliminary matter, we note that Zhu failed to

10   exhaust his claims for withholding of removal and CAT relief

11   by not raising those claims before the BIA.     See

12   Theodoropoulos v. I.N.S., 358 F.3d 162, 171 (2d Cir. 2004)

13   (“[A]t least one of the purposes served by the exhaustion

14   requirement contained in § 1252(d) is to ensure that the

15   INS, as the agency responsible for construing and applying

16   the immigration laws and implementing regulations, has had a

17   full opportunity to consider a petitioner's claims before

18   they are submitted for review by a federal court.”).        Thus,

19   to the extent he raises those claims in this Court, we lack

20   jurisdiction to review his arguments.     See 8 U.S.C.

21   § 1252(d)(1).

22       Zhu contends that the BIA erred in finding that he had


                                     3
1    not established his membership in a particular social group

2    for purposes of asylum eligibility.    See 8 U.S.C.

3    § 1101(a)(42).    He argues that the BIA failed to take into

4    account his prior detention and mistreatment in defining his

5    social group, instead focusing solely on his fear of future

6    persecution.

7        First, the BIA clearly considered Zhu’s past experience

8    in its decision, noting that Zhu “was previously detained

9    and beaten by Chinese authorities when he was returned after

10   a failed smuggling attempt in September 1999.”    Cf. Vumi v.

11   Gonzales, 502 F.3d 150, 155 (2d Cir. 2007) (remanding

12   because the agency failed to consider petitioner’s claim

13   that family members can constitute a particular social

14   group).   Second, a social group cannot be defined

15   exclusively by the fact that its members have been subject

16   to past harm.    Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d

17   Cir. 2007); see also Koudriachova v. Gonzales, 490 F.3d 255,

18   261 (2d Cir. 2007) (“[N]ot all applicants who can point to

19   membership in some group united by a shared past experience

20   will qualify for asylum.”).    Therefore, the BIA did not err

21   in denying Zhu’s application for asylum.    Manzur, 494 F.3d

22   at 289.


                                    4
1    II.   Dkt. No. 09-0273-ag (Con): The BIA’s December 2008
2          Order

3          We review the BIA’s denial of a motion to reopen or

4    reconsider for abuse of discretion.    See Kaur v. BIA, 413

5    F.3d 232, 233 (2d Cir. 2005) (per curiam); Jin Ming Liu v.

6    Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (per curiam).      An

7    abuse of discretion may be found where the BIA’s decision

8    “provides no rational explanation, inexplicably departs from

9    established policies, is devoid of any reasoning, or

10   contains only summary or conclusory statements; that is to

11   say, where the Board has acted in an arbitrary or capricious

12   manner.” Kaur, 413 F.3d at 233-34 (internal quotation marks

13   omitted); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d

14   83, 93 (2d Cir. 2001).

15         The BIA did not abuse its discretion in denying Zhu’s

16   motion to reconsider. Although Zhu argues that in defining

17   his social group the BIA erred by focusing solely on his

18   fear of future persecution and ignoring evidence of his

19   prior detention and mistreatment at the hands of the Chinese

20   government, the BIA stated in its decision that it defined

21   the group as “those persons who have already been punished

22   for a prior departure and now face forcible return after a

23   subsequent illegal departure.”    The BIA supported its

                                   5
1    decision with a rational and reasoned analysis, finding that

2    Zhu still failed to establish eligibility for asylum

3    because: (1) the group lacked the required “social

4    visibility”; (2) members did not share a “common, immutable

5    characteristic”; and (3) the mistreatment Zhu feared did not

6    rise to the level of persecution.   Therefore, the BIA did

7    not abuse its discretion in denying Zhu’s motion to

8    reconsider.   Ke Zhen Zhao, 265 F.3d at 93.

9        For the foregoing reasons, the petition for review is

10   DENIED.   As we have completed our review, any pending motion

11   for a stay of removal in this petition is DISMISSED as moot.

12   Any pending request for oral argument in this petition is

13   DENIED in accordance with Federal Rule of Appellate

14   Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

15                               FOR THE COURT:
16                               Catherine O’Hagan Wolfe, Clerk
17
18
19                               By:___________________________




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