     11-5011
     Yu v. Holder
                                                                                              BIA
                                                                                        Abrams, IJ
                                                                                      A099 930 793


                         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 for the Second Circuit, held
 2   at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 19th day of July, two thousand thirteen.
 4
 5   PRESENT:
 6
 7              JOHN M. WALKER, JR.,
 8              ROSEMARY S. POOLER,
 9              RAYMOND J. LOHIER, JR.,
10                          Circuit Judges.
11   _________________________________________
12   JIA FU YU,
13              Petitioner,
14
15                  v.                                       11-5011
16                                                           NAC
17   ERIC H. HOLDER, JR., UNITED STATES
18   ATTORNEY GENERAL,
19              Respondent.
20   _________________________________________
21
22   FOR PETITIONER:                    Gary J. Yerman, New York, NY.
23
24   FOR RESPONDENT:                    Stuart F. Delery, Assistant Attorney General; David V.
25                                      Bernal, Assistant Director; Dara S. Smith, Trial
26                                      Attorney, Office of Immigration Litigation, United
27                                      States Department of Justice, Washington, D.C.
 1          UPON DUE CONSIDERATION of this petition for review of a Board of

 2   Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

 3   DECREED that the petition for review is DENIED and the pending motion for a stay of

 4   removal is DENIED as moot.

 5          Petitioner Jia Fu Yu, a native and citizen of the People’s Republic of China, seeks

 6   review of a November 9, 2011, decision of the BIA affirming the March 24, 2010,

 7   decision of an Immigration Judge (“IJ”), denying his application for asylum, withholding

 8   of removal, and relief under the Convention Against Torture (“CAT”). In re Jia Fu Yu,

 9   No. A099 930 793 (B.I.A. Nov. 9, 2011), aff’g No. A099 930 793 (Immig. Ct. N.Y. City

10   Mar. 24, 2010). We assume the parties’ familiarity with the underlying facts and

11   procedural history in this case.

12          We have reviewed the decision of the IJ as supplemented by the BIA. See Yan

13   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of review

14   are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

15   510, 513 (2d Cir. 2009). Yu argues that the agency erred in finding that he had not

16   demonstrated past persecution or a well-founded fear of future persecution based on his

17   “other resistance” to Chinese family planning policies. Yu’s arguments are unavailing.

18          In finding that Yu had not demonstrated past persecution, the agency reasonably

19   determined that the harm Yu suffered — being arrested, detained, and slapped in the face

20   by family planning officials — did not rise to the level of persecution. See Jian Qiu Liu

21   v. Holder, 632 F.3d 820, 822 (2d Cir. 2011) (holding that a “minor bruising from an


                                                  2
 1   altercation with family planning officials, which required no formal medical attention and

 2   had no lasting physical effect,” did not amount to persecution). Although minor injuries

 3   inflicted in the context of detention may rise to the level of persecution, here, because Yu

 4   was detained only briefly, and the slap he received left no permanent marks and required

 5   no formal medical attention, the agency did not err in concluding that such harm did not

 6   rise to the level of persecution. See Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir.

 7   2006) (requiring a case-by-case adjudication as to the circumstances surrounding the

 8   harm inflicted during petitioner’s arrest or detention); see also Jian Qiu Liu, 632 F.3d at

 9   822.

10          The agency’s determination that Yu did not suffer past harm rising to the level of

11   persecution obviates any presumption of a well-founded fear on the basis of that harm.

12   See 8 C.F.R. § 1208.13(b)(1). However, Yu alleged a fear of future harm based on his

13   failure to publicly disavow his criticism of the Chinese family planning policy and his

14   failure to pay a fine, which were conditions of his release from detention. The agency’s

15   determination that Yu had not independently proven a well-founded fear of persecution

16   on this basis was not in error. As the BIA found, Yu did not allege that he would be

17   sterilized if returned to China for violating the family planning policy. Furthermore, as

18   the agency noted, Yu lived in China unharmed for three months following his release

19   from detention; although authorities sought him out, they did not harm his relatives; Yu

20   conceded that no arrest warrant issued and no additional fine was imposed; and there was

21   no evidence in the record that authorities continued to seek to harm him. See


                                                   3
 1   Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004) (holding that an applicant

 2   must demonstrate an objective fear of persecution in order to establish that he has a well-

 3   founded fear of future persecution); Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.

 4   2005) (a fear is not objectively reasonable if it lacks “solid support” in the record and is

 5   merely “speculative at best”). Because the agency did not err in concluding that Yu failed

 6   to establish past persecution or a well-founded fear of persecution as required for asylum,

 7   it also did not err in denying withholding of removal and CAT relief as those claims

 8   shared the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

 9   2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

10          For the foregoing reasons, the petition for review is DENIED. As we have

11   completed our review, the pending motion for a stay of removal is DENIED as moot.

12                                              FOR THE COURT:
13                                              Catherine O’Hagan Wolfe, Clerk




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