         08-5664-ag
         Siu v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A098 563 370
                              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 4 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11       _______________________________________
12
13       YUEN CHUEN SIU,
14                Petitioner,
15
16                           v.                                 08-5664-ag
17                                                              NAC
18       ERIC H. HOLDER JR., UNITED STATES
19       ATTORNEY GENERAL, *
20                Respondent.
21       _______________________________________
22
23
24
25

                         *
                    Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder Jr. is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONER:         John X. Wang, New York, New York.
 2
 3   FOR RESPONDENT:         Tony West, Assistant Attorney
 4                           General; Terri J. Scadron, Assistant
 5                           Director; Genevieve Holm, Trial
 6                           Attorney, Office of Immigration
 7                           Litigation, United States Department
 8                           of Justice, Washington, D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

11   Board of Immigration Appeals (“BIA”) decision, it is hereby

12   ORDERED, ADJUDGED, AND DECREED, that the petition for review

13   is DENIED.

14       Yuen Chuen Siu, a native and citizen of the People’s

15   Republic of China, seeks review of a November 6, 2008 order

16   of the BIA that: (1) affirmed the October 26, 2006 decision

17   of Immigration Judge (“IJ”) Barbara A. Nelson, which

18   pretermitted his application for asylum and denied his

19   application for withholding of removal; and (2) denied his

20   motion to remand.   In re Yuen Chuen Siu, No. A098 563 370

21   (B.I.A. Nov. 6, 2008), aff’g No. A098 563 370 (Immig. Ct.

22   N.Y. City Oct. 26, 2006).   We assume the parties’

23   familiarity with the underlying facts and procedural history

24   in this case.

25       As an initial matter, because Siu does not challenge:

26   (1) the agency’s pretermission of his application for

27   asylum; (2) the agency’s finding that prosecution for

                                   2
1    illegally departing China did not constitute persecution;

2    and (3) the BIA’s denial of his motion to remand, we deem

3    any such arguments abandoned.       See Yueqing Zhang v.

4    Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

5        When the BIA does not expressly “adopt” the IJ’s

6    decision, but its brief opinion closely tracks the IJ’s

7    reasoning, the Court may consider both the IJ’s and the

8    BIA’s opinions “for the sake of completeness.”       Zaman v.

9    Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).       We review the

10   agency’s factual findings under the substantial evidence

11   standard.    See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.

12   Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).       We review de novo

13   questions of law and the application of law to undisputed

14   fact.    Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.

15   2008).

16       We find that the agency reasonably concluded that Siu

17   failed to demonstrate that he had suffered past persecution

18   in China.    The BIA has defined persecution as “a threat to

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

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

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

22   Court has clarified that a valid past persecution claim can


                                     3
1    be based on harm other than threats to life or freedom,

2    including non-life-threatening violence and physical abuse.

3    Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006)

4    (citing Tian-Yong Chen v. INS, 359 F.3d 121, 128 (2d. Cir.

5    2004)).    In order to constitute persecution, the alleged

6    harm must be sufficiently severe, rising above “mere

7    harassment.”     Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d

8    332, 341 (2d Cir. 2006).     Economic harm may constitute

9    persecution, however, “an applicant for asylum must

10   demonstrate a severe economic disadvantage.”     In re T-Z-, 24

11   I. & N. Dec. 163, 173 (BIA 2007).     Indeed, “[t]he economic

12   difficulties must be above and beyond those generally shared

13   by others in the country of origin and involve noticeably

14   more than mere loss of social advantages or physical

15   comforts.”     Id.

16       Although Siu testified before the IJ that his family

17   was deprived of food subsidies, education, medical benefits,

18   and housing in China, he provided no specific details of

19   ever being denied such benefits.     Furthermore, Siu admitted

20   that when he was five years old, his family moved to Hong

21   Kong where he attended school for eleven years and suffered

22   no harm.     Because Siu failed to describe any incident of


                                     4
1    harm suffered, much less severe harm, the agency reasonably

2    determined that he did not establish that he had suffered

3    past persecution.   See Ivanishvili, 433 F.3d at 341; In re

4    T-Z-, 24 I. & N. Dec. at 172-73.

5        Similarly, the agency did not err in finding that Siu

6    failed to demonstrate a likelihood of forced sterilization

7    on account of the birth of his U.S. citizen child.       Indeed,

8    in light of the fact that Siu was not in violation of

9    China’s family planning policy with the birth of his one

10   child, the agency did not err in finding speculative his

11   fear of such persecution.   See Jian Xing Huang v. INS, 421

12   F.3d 125, 129 (2d Cir. 2005).       Accordingly, as Siu failed to

13   demonstrate either past persecution or a likelihood of

14   future persecution, the agency did not err in denying his

15   application for withholding of removal.       See 8 C.F.R.

16   § 1208.16(b).

17       For the foregoing reasons, the petition for review is

18   DENIED.   T he pending motion for a stay of removal in this

19   petition is DISMISSED as moot.

20                                FOR THE COURT:
21                                Catherine O’Hagan Wolfe, Clerk
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