         09-2314-ag
         Chen v. Holder
                                                                                       BIA
                                                                                 Brennan, IJ
                                                                               A099 532 552
                           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 20th day of May, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                      Circuit Judges.
11       ______________________________________
12
13       ZHI TAN CHEN,
14                Petitioner,
15
16                                                              09-2314-ag
17                        v.                                    NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Jim Li, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Assistant Director; Tracey N.
29                                     McDonald, Trial Attorney, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
32                                     of Justice, 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       Petitioner, Zhi Tan Chen, a native and citizen of

 6   China, seeks review of a May 4, 2009, decision of the BIA

 7   affirming the July 17, 2007, decision of Immigration Judge

 8   (“IJ”) Noel Brennan denying his application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”). In re Zhi Tan Chen, No. A099 532

11   552 (B.I.A. May 4, 2009), aff’g       No. A099 532 552 (Immig.

12   Ct. N.Y. City July 17, 2007).       We assume the parties’

13   familiarity with the underlying facts and procedural history

14   of the case.

15       Under the circumstances of this case, we consider both

16   the IJ’s and the BIA’s opinions “for the sake of

17   completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18   2008).   Because Chen does not meaningfully challenge the

19   agency’s denial of his application for withholding of

20   removal or CAT relief, we consider only the agency’s denial

21   of his asylum claim.   See Yueqing Zhang v. Gonzales, 426

22   F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (concluding that

23   issues not sufficiently argued in the briefs are considered

                                     2
 1   waived and normally will not be addressed on appeal).      The

 2   applicable standards of review are well-established.    See

 3   8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

 4   562 F.3d 510, 513 (2d Cir. 2009); Li Yong Cao v. Dep't of

 5   Justice, 421 F.3d 149, 151 (2d Cir.2005).

 6       The agency correctly concluded that Chen was not

 7   eligible for asylum based solely on his wife’s forced

 8   abortion and sterilization.   See Shi Liang Lin v. U.S. Dep’t

 9   of Justice, 494 F.3d 296, 309-10 (2d Cir. 2007).

10   Nonetheless, even though he was not per se eligible for

11   relief on that basis, he could have established his

12   eligibility for relief by demonstrating that he engaged in

13   “other resistance” to the family planning policy and that he

14   either suffered past persecution or had a well founded fear

15   of future persecution on account of that resistance.

16   8 U.S.C. § 1101(a)(42); Shi Liang Lin, 494 F.3d at 313.

17       The agency reasonably found, however, that Chen failed

18   to demonstrate past persecution or a well-founded fear of

19   future persecution, as, even taken cumulatively, the harms

20   he suffered did not constitute persecution.   While Chen

21   claims that family planning officials pushed him out of

22   their office, causing him to hit his back on a doorknob and

23   resulting in a small bruise, the agency reasonably

                                   3
 1   determined that this physical mistreatment, considered with

 2   other claimed harms, did not constitute past persecution, as

 3   Chen was not detained at the time and did not establish that

 4   he suffered any significant harm as a result.   Ivanishvili

 5   v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)

 6   (holding that “the difference between harassment and

 7   persecution is necessarily one of degree that must be

 8   decided on a case-by-case basis”); Jian Qui Liu v. Holder,

 9   No. 09-5258-ag, 2011 WL 199123, at *1-2 (2d Cir. Jan. 24,

10   2011) (holding that a minor beating by family planning

11   officials prior to arrest and detention by police, and

12   carried out without any intention to arrest or detain, need

13   not constitute persecution).

14       In addition, the agency reasonably determined that the

15   threats by family planning officials to call the police if

16   Chen did not stop arguing with them or speaking to other

17   villagers about the family planning policy did not

18   constitute persecution, given that Chen did not specify what

19   harm would have resulted if the police were called, and the

20   threats remained unfulfilled even though he remained in

21   China for more than three years after his wife was

22   sterilized.   See Guan Shan Liao v. U.S. Dep’t of Justice,

23   293 F.3d 61, 70 (2d Cir. 2002) (determining that an

                                    4
 1   ambiguously worded order to attend a birth control study

 2   class did not amount to past persecution).

 3       The agency also reasonably determined that Chen failed

 4   to establish a well founded fear of future persecution, as

 5   he did not present any argument or evidence indicating that

 6   he would suffer more severe harm upon return to China than

 7   he had suffered in the past. See Ramsameachire v. Ashcroft,

 8   357 F.3d 169, 178 (2d Cir. 2004) (requiring an applicant to

 9   demonstrate that his subjective fear is objectively

10   reasonable); Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d

11   Cir. 2005) (holding that absent “solid support in the

12   record” for petitioner’s claim that he would be persecuted

13   under the family planning policy, his fear was “speculative

14   at best”).

15       For the foregoing reasons, the petition for review is

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

17   removal that the Court previously granted in this petition

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

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

20   oral argument in this petition is DENIED in accordance with

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

22   Circuit Local Rule 34.1(b).

23                                 FOR THE COURT:
24                                 Catherine O’Hagan Wolfe, Clerk
25
26

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