     15-3520
     Weng v. Lynch
                                                                                        BIA
                                                                           Gordon-Uruakpa, IJ
                                                                                A205 027 301

                          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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   14th day of December, two thousand sixteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            SUSAN L. CARNEY,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   YUQUAN WENG,
14            Petitioner,
15
16                   v.                                              15-3520
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Kai W. De Graaf, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; John S.
27                                       Hogan, Assistant Director; Daniel E.
28                                       Goldman, Senior Litigation Counsel,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       Washington, D.C.
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 is

4    DENIED.

5        Petitioner Yuquan Weng, a native and citizen of the

6    People’s Republic of China, seeks review of an October 7, 2015

7    decision of the BIA, affirming an April 10, 2014 decision of

8    an Immigration Judge (“IJ”) denying Weng’s application for

9    asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Yuquan Weng, No. A205 027 301

11   (B.I.A. Oct. 7, 2015), aff’g No. A205 027 301 (Immig. Ct. N.Y.C.

12   Apr. 10, 2014).    We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we review the IJ’s

15   decision as modified by the BIA.   Xue Hong Yang v. U.S. Dep’t

16   of Justice, 426 F.3d 520, 522 (2d Cir. 2005).    The applicable

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

18   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

19   Cir. 2009).    The dispositive issue before us is whether Weng

20   demonstrated past persecution or a well-founded fear of future

21   persecution.
                                    2
1      I.     Past Persecution

2           It is undisputed that Weng was not eligible for relief

3    solely based on the family planning measures (insertion of an

4    IUD and an abortion) to which his wife was subjected.         See Shi

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

6    Cir. 2007).        Weng could qualify for asylum, however, by

7    demonstrating that (1) he engaged in “other resistance” to the

8    family planning policy; and (2) as a direct result of that

9    resistance, he suffered harm rising to the level of persecution

10   or had a well-founded fear of suffering such harm.      See 8 U.S.C.

11   § 1101(a)(42); Shi Liang Lin, 494 F.3d at 313; see also Matter

12   of J-S-, 24 I. & N. Dec. 520, 523 (A.G. 2008).

13          The agency did not err in concluding that Weng failed to

14   demonstrate that he suffered harm rising to the level of

15   persecution.      Past persecution can be established by harm other

16   than threats to life or freedom, including non-life-threatening

17   violence and physical abuse, Beskovic v. Gonzales, 467 F.3d 223,

18   226 n.3 (2d Cir. 2006), but the harm must be sufficiently severe,

19   rising    above   “mere   harassment,”   to   meet   that   standard.

20   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.


                                       3
1    2006).   Weng’s testimony regarding past persecution rested on

2    one incident with family planning officials, in which (as he

3    recounts) they punched and kicked him and detained him for one

4    day.   On cross-examination, Weng clarified that he was beaten

5    for “[o]nly a little bit of time” until officials could handcuff

6    him, and that he suffered bruises on his leg and back.      This

7    evidence does not compel the conclusion that the harm Weng

8    suffered was sufficiently severe to constitute persecution.

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

10   (“[Petitioner] failed to establish past persecution because

11   substantial evidence supports the BIA’s finding that, prior to

12   his arrest and detention by local police, he suffered only minor

13   bruising from an altercation with family planning officials,

14   which required no formal medical attention and had no lasting

15   physical   effect.”).    Accordingly,   the   agency   reasonably

16   determined that Weng was not persecuted in the past.      See Mei

17   Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (“We have

18   emphasized that persecution is ‘an extreme concept that does

19   not include every sort of treatment our society regards as

20   offensive.’” (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,

21   416 F.3d 192, 198 (2d Cir. 2005))).
                                    4
1

2         II. Well-Founded Fear of Future Persecution

3           The agency’s determination rejecting Weng’s asserted fear

4    of future persecution is also sound.         Absent past persecution,

5    an    applicant   may   establish       eligibility    for   asylum   by

6    demonstrating a well-founded fear of future persecution.

7    8 C.F.R. § 1208.13(b).       Such an asserted fear must be both

8    subjectively      credible      and       objectively        reasonable.

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

10          To the extent the agency concluded that Weng’s fear of his

11   or his wife’s sterilization was speculative because it was based

12   on the possibility that his wife will become pregnant, it erred.

13   In Rui Ying Lin v. Gonzales, 445 F.3d 127 (2d Cir. 2006), we

14   vacated the agency’s finding that petitioner’s claimed fear of

15   forced    sterilization   was   speculative.          Petitioner   there

16   already had two children, planned to have more, went to great

17   lengths to avoid being sterilized in China, and had her IUD

18   removed in the United States.           We commented that “[i]n the

19   absence of some proof of [petitioner’s] infertility, it is not

20   clear what is speculative about her desire to have more children


                                         5
1    or her ability to do so.”     445 F.3d at 136.     Weng’s case

2    presents similar circumstances: although Weng and his wife have

3    only one son, Weng testified that he and his wife “really want

4    to have another child,” and, in fact, Weng’s wife became

5    pregnant with a second child after removing her IUD, but the

6    pregnancy was terminated at the instance of family planning

7    officials.

8        Here, however, unlike in Lin, the IJ also concluded that

9    Weng failed to show that his fear of sterilization was

10   objectively reasonable.   In so concluding, the IJ relied on the

11   2013 State Department Country Report, which advises that the

12   majority of families in China are eligible to have more than

13   one child.   In light of this report and because Weng has only

14   one child, the IJ concluded that Weng’s fear of sterilization

15   is not objectively reasonable.       The IJ further based her

16   conclusion on the Report’s statement that violations of family

17   planning policies vary between regions and its failure to

18   identify any incidents of sterilization of the sort Weng feared

19   in Weng’s home province of Fujian.

20       We find no error in the IJ’s determinations in this regard.

21   Weng does not challenge the agency’s reliance on the 2013 State
                                    6
1    Department Report in his opening brief.     See Norton v. Sam’s

2    Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently

3    argued in the briefs are considered waived and normally will

4    not be addressed on appeal.”).     Accordingly, and because the

5    IJ’s finding “is tethered to the evidentiary record,” we “accord

6    deference to the finding.”   Siewe v. Gonzales, 480 F.3d 160,

7    169 (2d Cir. 2007).

8        Further, Weng cites no record evidence to support his

9    conclusory assertion that his fear of persecution under the

10   family planning policy is objectively reasonable.    Rather, as

11   grounds for his fear, he asserts that Chinese law penalizes

12   failures (like his wife’s) to submit to a pregnancy examination;

13   he argues that local family planning officials are empowered

14   to broadly implement “remedial measures” to “stop” violators

15   of family planning laws; and he cites “Article 2” of Fujian

16   Province law, which Weng says states that “both husband and wife

17   are under the obligation to practice family planning.”       He

18   cites no evidence, however, that similarly situated individuals

19   face persecution in Fujian Province. Instead he asserts that

20   his bad “track record” with family planning officials makes it

21   “more probable than not” that he will be targeted.      This is
                                    7
1    insufficient to establish a well-founded fear of persecution.

2    See 8 C.F.R. § 1208.13(a), (b)(1) (burden rests on applicant

3    to establish well-founded fear in absence of past persecution);

4    Jian Hui Shao v. Mukasey, 546 F.3d 138, 142-43, 148 (2d Cir.

5    2008) (noting that applicants must demonstrate that violation

6    of family planning policy would be punished in local area so

7    as to give rise to objectively reasonable fear of persecution).

8        The agency thus reasonably found that Weng failed to

9    demonstrate past persecution or a well-founded fear of future

10   persecution on account of the family planning policy.   Because

11   all three claims are based on the same factual predicate, it

12   reasonably denied him asylum, withholding of removal, and CAT

13   relief.   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

14   2006).

15       For the foregoing reasons, the petition for review is

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

17   that the Court previously granted in this petition is VACATED,

18   and any pending motion for a stay of removal in this petition

19   is DISMISSED as moot.   Any pending request for oral argument

20   in this petition is DENIED in accordance with Federal Rule of


                                    8
1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk




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