         10-2705-ag
         Zhu v. Holder
                                                                                       BIA
                                                                                  Rohan, IJ
                                                                               A097 335 850
                          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 15th day of April, two thousand eleven.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                RAYMOND J. LOHIER, JR.,
10                        Circuit Judges.
11       _______________________________________
12
13       MAIJIN ZHU,
14                Petitioner,
15
16                       v.                                     10-2705-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Jan Potemkin, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Mary Jane Candaux,
27                                     Assistant Director; Michael C.
28                                     Heyse, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     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

 4   is DENIED.

 5       Maijin Zhu, a native and citizen of China, seeks review

 6   of a June 9, 2010, order of the BIA affirming the November

 7   18, 2008, decision of Immigration Judge (“IJ”) Patricia A.

 8   Rohan, which denied his application for asylum and

 9   withholding of removal.     In re Maijin Zhu, No. A097 335 850

10   (B.I.A. June 9, 2010), aff’g No. A097 335 850 (Immig. Ct.

11   N.Y. City Nov. 18, 2008).    We assume the parties’

12   familiarity with the underlying facts and procedural history

13   in this case.

14       Under the circumstances of this case, we have reviewed

15   the IJ’s decision as the final agency decision.       See Mei

16   Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.

17   2007).   The applicable standards of review are well-

18   established.    See Salimatou Bah v. Mukasey, 529 F.3d 99, 110

19   (2d Cir. 2008); Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d

20   Cir. 2007).

21       Because Zhu is not per se eligible for asylum based on

22   his girlfriend’s forced abortion, he was required to show

23   “other resistance to a coercive population control program,”

                                     2
 1   and that he was persecuted as a result.   Shi Liang Lin v.

 2   U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir. 2007).

 3   The BIA has defined persecution as a “threat to the life or

 4   freedom of, or the infliction of suffering or harm upon,

 5   those who differ in a way regarded as offensive.”     Matter of

 6   Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985), overruled, in

 7   part, on other grounds, INS v. Cardoza-Fonseca, 480 U.S. 421

 8   (1987).   The harm must be sufficiently severe, rising above

 9   “mere harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433

10   F.3d 332, 341 (2d Cir. 2006).

11       Here, the IJ reasonably found that the harm Zhu

12   suffered was insufficiently severe to constitute

13   persecution.   Zhu was denied permission to marry on two

14   occasions because he was underage, family planning officials

15   intruded upon and stopped his traditional wedding, and they

16   threatened to arrest him after he argued with them, forcing

17   him to flee.   Because Zhu returned to his home that same

18   evening, and had no further issues with the authorities in

19   the three months before he left China, the agency reasonably

20   concluded that Zhu did not suffer past persecution.     See id.

21       Because the agency reasonably concluded that Zhu did

22   not suffer past persecution, he was not entitled to a


                                     3
 1   presumption of future persecution.    See 8 C.F.R.

 2   § 208.13(b)(1).    As the only specific allegation Zhu made

 3   regarding future persecution was that the family planning

 4   officials threatened to arrest him for any future violation

 5   of the policy, the agency reasonably concluded that Zhu did

 6   not meet his burden of establishing a well-founded fear of

 7   future persecution.    See Jian Xing Huang v. INS, 421 F.3d

 8   125, 129 (2d Cir. 2005) (concluding that a fear is not

 9   objectively reasonable if it lacks “solid support” in the

10   record and is merely “speculative at best”).    Because Zhu

11   did not demonstrate past persecution, or a well-founded fear

12   of future persecution, the agency did not err in denying his

13   application for asylum. See 8 C.F.R. § 208.13(b).    Moreover,

14   because Zhu did not establish a well-founded fear of

15   persecution, he was necessarily unable to meet the higher

16   standard required to succeed on a claim for withholding of

17   removal.    See 8 C.F.R. § 1208.16(b); Paul v. Gonzales, 444

18   F.3d 148, 156 (2d Cir. 2006); Gomez v. INS, 947 F.2d 660,

19   665 (2d Cir. 1991).

20       For the foregoing reasons, the petition for review is

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

22   removal that the Court previously granted in this petition


                                    4
1   is VACATED, and any pending motion for a stay of removal in

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

3   oral argument in this petition is DENIED in accordance with

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

5   Circuit Local Rule 34.1(b).

6                                 FOR THE COURT:
7                                 Catherine O’Hagan Wolfe, Clerk




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