09-4911-ag
Yang v. Holder
                                                                                 BIA
                                                                           Elstein, IJ
                                                                        A098 718 421
                  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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 26th day of October, two thousand ten.

PRESENT:
         DENNIS JACOBS,
              Chief Judge,
         JON O. NEWMAN,
         RALPH K. WINTER,
              Circuit Judges.
______________________________________

SHIFENG YANG,
         Petitioner,

                 v.                                                09-4911-ag
                                                                          NAC
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
         Respondent.
______________________________________

FOR PETITIONER:                G. Victoria Calle, New York, New York.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               James E. Grimes, Senior Litigation
                               Counsel; Kerry A. Monaco, 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.

      Shifeng    Yang,   a   native   and    citizen   of   the   People’s

Republic of China, seeks review of an October 30, 2009,

decision of the BIA affirming the January 28, 2008, decision

of Immigration Judge (“IJ”) Annette S. Elstein, which denied

Yang’s application for asylum, withholding of removal, and

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

Shifeng Yang, No. A098 718 421 (BIA Oct. 30, 2009), aff’g No.

A098 718 421 (Immig. Ct. N.Y. City Jan. 28, 2008).                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 the BIA’s opinions “for the sake of completeness.”

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); see also Corovic v. Mukasey, 519 F.3d

90, 95 (2d Cir. 2008); Bah v. Mukasey, 529 F.3d 99, 110 (2d

Cir. 2008).



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    The agency did not err in finding that, even if credible,

Yang did not meet his burden of proof to establish his

eligibility for asylum.         The agency reasonably found that

unfulfilled threats, which were the only individualized harm

Yang alleged he had suffered, did not rise to the level of

persecution. See Ci Pan v. United States Atty General, 449

F.3d 408, 412-13 (2d Cir. 2006).                This is so, even when

considered in conjunction with his father’s alleged beating,

because, as the IJ noted, Yang did not allege that this

incident resulted in any injuries to his father or caused Yang

any continuing harm.         See Shi Liang Lin v. U.S. Dep’t of

Justice, 494 F.3d 296, 308 (2d Cir. 2007) (“the statutory

scheme    unambiguously     dictates     that   applicants      can    become

candidates for asylum relief only based on persecution that

they themselves have suffered or must suffer”); see also Tao

Jiang    v.   Gonzales,   500   F.3d   137,     141-42   (2d    Cir.   2007)

(recognizing that the “harm suffered by family members in

combination with other factors . . . would presumably only be

[persecution] where . . . the applicant not only shares (or is

perceived     to   share)    the   characteristic        that    motivated

persecutors to harm the family members, but was also within

the zone of risk when the family member was harmed, and


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suffered    some   continuing    hardship       after    the   incident.”).

Therefore, the agency did not err in finding that Yang failed

to demonstrate that he suffered past persecution and we need

not review the agency’s alternative determination that the

harm he claimed to have suffered was not on account of a

protected ground.        See 8 C.F.R. § 1208.13(b)(1); see also

Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d

Cir. 2006).

     In addition, by not briefing the claim in this Court,

Yang forfeited any challenge to the agency’s determination

that he failed to demonstrate a well-founded fear of future

persecution. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541

n.1, 545 n.7 (2d Cir. 2005).          Accordingly, we find no error in

the agency’s denial of Yang’s application for asylum.                  See 8

C.F.R. § 1208.13(b)(1).        Moreover, the agency did not err in

denying his application for withholding of removal based on

denial of his application for asylum because those claims were

based on the same factual predicate.              See Paul v. Gonzales,

444 F.3d 148, 155-56 (2d Cir. 2006).

     Finally, Yang waives any challenge to the agency’s denial

of   his   application   for    CAT    relief    based    on   his   illegal

departure claim. See Yueqing Zhang, 426 F.3d 540 at 541 n.1,

545 n.7

                                  -4-
    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

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

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

this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




                               -5-
