    11-2378-ag                                                                    BIA
    Wu v. Holder                                                               Burr, IJ
                                                                         A093 389 938


                        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 20th day of August, two thousand twelve.

    PRESENT:
              ROSEMARY S. POOLER,
              GERARD E. LYNCH,
                  Circuit Judges.*
    _______________________________________

    GUOQIN WU, AKA GUOQIN JIANG
             Petitioner,

                       v.                                 11-2378-ag
                                                          NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________



                   *
             The Honorable Roger J. Miner, originally a member of
        the panel, died on February 18, 2012. The two remaining
        members of the panel, who are in agreement, have
        determined the matter. See 28 U.S.C. § 46(d); 2d Cir.
        IOP E(b); United States v. Desimone, 140 F.3d 457 (2d
        Cir. 1998).
FOR PETITIONER:           Lee Ratner, New York, New York.

FOR RESPONDENT:           Tony West, Assistant Attorney
                          General; Shelley R. Goad, Assistant
                          Director; Tim Ramnitz, 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.

       Guoqin Wu, a native and citizen of the People’s

Republic of China, seeks review of a May 26, 2011, order of

the BIA affirming the April 20, 2009, decision of

Immigration Judge (“IJ”) Sarah M. Burr, which denied his

application for asylum, withholding of removal, and relief

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

Wu, No. A093 389 938 (B.I.A. May 26, 2011), aff’g No. A093

389 938 (Immig. Ct. N.Y. City Apr. 20, 2009).     We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

       Because the BIA largely adopted the IJ’s decision, we

have reviewed the decision of the IJ as supplemented by the

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

2005).    We review the agency’s factual findings under the


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substantial evidence standard, which requires us to treat

those findings as conclusive unless “any reasonable

adjudicator would be compelled to conclude to the contrary.”

Su Chun Hu v. Holder, 579 F.3d 155, 158 (2d Cir. 2009).     We

review de novo questions of law and the application of law

to undisputed fact.    See, e.g., Bah v. Mukasey, 529 F.3d 99,

110 (2d Cir. 2008).

    In Shi Liang Lin v. U.S. Dep’t of Justice, this Court

determined that, under 8 U.S.C. § 1101(a)(42), an individual

is not per se eligible for asylum based on a spouse or

partner’s forced abortion or sterilization because

“applicants can become candidates for asylum relief only

based on persecution that they themselves have suffered or

must suffer.”   494 F.3d 296, 308 (2d Cir. 2007).    Thus, in

order to establish eligibility for relief, Wu must show

“other resistance to a coercive population control program,”

and that as a result of that resistance, he was persecuted.

See id.    The agency did not err in finding that Wu did not

establish persecution based on a brief detention and

beating.

    The BIA has defined persecution as a “threat to the

life or freedom of, or the infliction of suffering or harm


                               3
upon, those who differ in a way regarded as offensive.”

Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985),

overruled in part on other grounds, INS v. Cardoza-Fonseca,

480 U.S. 421 (1987); accord Ivanishvili v. U.S. Dep’t of

Justice, 433 F.3d 332, 342 (2d Cir. 2006).       The harm must be

sufficiently severe, rising above “mere harassment.”

Ivanishvili, 433 F.3d at 341.       Here, the agency considered

Wu’s description of his assault, and reasonably concluded

that the beating did not amount to persecution because the

detention was brief, Wu did not require medical attention as

a result of the beating, and the beating had no lasting

physical effect.   See Jian Qiu Liu v. Holder, 632 F.3d 820,

822 (2d Cir. 2011) (“We have never held that a beating that

occurs within the context of an arrest or detention

constitutes persecution per se.       Rather, we have held that a

beating that occurs in the context of an arrest or detention

may constitute persecution, and that the agency must be

keenly sensitive to context in evaluating whether the harm

suffered rises to the level of persecution.” (internal

quotations omitted)); Beskovic v. Gonzales, 467 F.3d 223,

226 (2d Cir. 2006).

    Wu also argues that he has a well-founded fear of

future persecution because family planning officials came to

                                4
his home and told his wife that they sought to punish him, a

claim supported by a letter from his wife stating that

officials “started frequently coming” to the house after Wu

left, and threatened Wu with “severe punishment.”     The

agency evaluated the letter and reasonably found that

because it did not indicate the type of punishment Wu would

face if he returned to China, it did not demonstrate that he

would face harm rising to the level of persecution.     See

Jian Hui Shao v. Mukasey, 546 F.3d 138, 172 (2d Cir. 2008)

(evidence of penalties or sanctions does not necessarily

signal a reasonable possibility of persecution).

    Because Wu did not demonstrate past persecution, or a

well-founded fear of future persecution, the agency did not

err in denying his application for asylum.   See 8 C.F.R.

§ 1208.13(b).   Moreover, because Wu did not establish a

well-founded fear of persecution, he necessarily cannot show

that it is more likely than not he will be persecuted or

tortured if he returns to China, and thus, the agency did

not err in denying withholding of removal or CAT relief.

See 8 C.F.R. §§ 1208.16(b), (c), 1208.17; Paul v. Gonzales,

444 F.3d 148, 156 (2d Cir. 2006).




                              5
    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

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



                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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