     17-1131
     Xie v. Barr
                                                                                    BIA
                                                                              Poczter, IJ
                                                                           A205 897 893
                        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
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ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
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 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 13th day of May, two thousand nineteen.
 5
 6   PRESENT:
 7            ROSEMARY S. POOLER,
 8            DEBRA ANN LIVINGSTON,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   GUOLIANG XIE,
14                       Petitioner,
15
16                 v.                                            17-1131
17                                                               NAC
18   William P. Barr,
19   UNITED STATES ATTORNEY GENERAL,
20                 Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Gary J. Yerman, New York, NY.
24
25   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
26                                     Attorney General; Mary Jane
27                                     Candaux, Assistant Director;
28                                     Matthew Connelly, Trial Attorney,
29                                     Office of Immigration Litigation,
30                                     United States Department of
31                                     Justice, Washington, DC.
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 Guoliang Xie, a native and citizen of the

6    People’s Republic of China, seeks review of the BIA’s June

7    10, 2016, decision, affirming a February 27, 2015, decision

8    of an Immigration Judge (“IJ”) denying Xie’s application for

9    asylum,   withholding   of   removal,   and   relief   under   the

10   Convention Against Torture (“CAT”).      In re Guoliang Xie, No.

11   A 205 897 893 (B.I.A. June 10, 2016), aff’g No. A 205 897 893

12   (Immig. Ct. N.Y. City Feb. 27, 2015).     We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Because Xie appealed only the IJ’s initial decision

16   concerning past persecution to the BIA, our review is limited

17   to that issue.   See Chupina v. Holder, 570 F.3d 99, 105 (2d

18   Cir. 2009) (explaining that petitioner may petition for review

19   directly from an IJ’s decision if challenge is to denial of

20   a form of relief previously appealed to the BIA, i.e., where

21   a claim was previously exhausted).      Within that restriction,
                                     2
1    we have reviewed both the IJ and BIA’s decisions. See Zaman

2    v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (noting that,

3    where the BIA does not expressly adopt the IJ’s decision, the

4    court    may     consider       both     opinions         “for     the    sake      of

5    completeness.”)(internal              quotation      marks       omitted).         The

6    applicable standards of review are well established.                             See 8

7    U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

8    513 (2d Cir. 2009).

9        The     agency       reasonably      concluded        that     Xie     did     not

10   establish       past    harm    rising   to    the    level       of    persecution

11   stemming    from       his    opposition     to     China’s      family    planning

12   policies.       Xie testified that he was detained overnight by

13   family planning cadres in his work unit and was subsequently

14   demoted to a lower-paying position requiring less desirable

15   duties     at    his     government-owned           company.           Because     the

16   detention was brief and Xie was not harmed, Xie has not

17   established       past       persecution.           See     Joaquin-Porras          v.

18   Gonzales,       435    F.3d    172,    182    (2d    Cir.     2006)      (upholding

19   determination that applicant was not eligible for withholding

20   of removal based on “brief” detention after which he was

21   released “without harm”).
                                              3
1        Nor is Xie’s economic harm sufficient to establish past

2    persecution.        Although persecution includes “non-physical

3    forms   of   harm    such   as    the       deliberate   imposition   of   a

4    substantial economic disadvantage,” Mei Fun Wong v. Holder,

5    633 F.3d 64, 72 (2d Cir. 2011) (internal quotation marks

6    omitted), to constitute persecution, economic harm must be

7    “severe,”    Matter of T-Z-, 24 I&N Dec. 163, 170-73 (BIA 2007);

8    see also Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d

9    61, 70 (2d Cir. 2002).           Xie failed to show severe economic

10   harm.   Although Xie’s pay was reduced, and he asserted that

11   he consequently found it difficult to buy food or pay for his

12   son’s tutoring, Xie lived in an apartment that his parents

13   bought for him and he did not need to repay the additional

14   money he borrowed from them.                Xie’s testimony that he could

15   not obtain other work and lacked time to start his own

16   business was speculative because he did not attempt to apply

17   for any other jobs in the six years after his wife’s 2006

18   abortion.    In addition, Xie did not know his wife’s salary

19   or whether it was reduced after her abortion, and he was able

20   to hide his demotion and financial situation from his wife

21   for six years.       Given these facts, Xie did not establish a
                                             4
1    deprivation of economic opportunity that rose to the level of

2    persecution.       Cf. Huo Qiang Chen v. Holder, 773 F.3d 396, 409

3    (2d Cir. 2014) (remanding where evidence did not support

4    conclusion that applicant could pay fine “without becoming

5    impoverished or deprived of the necessities of life”).

6         Xie argues that his detention, combined with these

7    economic consequences, amounted to persecution.                But the

8    economic    harm    constituted   the   bulk   of   Xie’s   persecution

9    claim.     Even considering the brief detention in conjunction

10   with the economic harm, the harm does not meet the legal

11   definition of persecution.        See Mei Fun Wong v. Holder, 633

12   F.3d 64, 72 (2d Cir. 2011) (“[P]ersecution is an extreme

13   concept that does not include every sort of treatment our

14   society regards as offensive.” (internal quotation marks

15   omitted)).

16       Because only the agency’s past persecution determination

17   is before us, Xie’s failure to establish past persecution is

18   dispositive of asylum and withholding of removal.            See Lecaj

19   v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010) (holding that

20   applicant who fails to meet burden for asylum necessarily

21   fails to meet higher burden for withholding of removal).
                                        5
1    Because Xie did not appeal the IJ’s subsequent decision

2    regarding his fear of future harm, he cannot state a CAT

3    claim.    See 8 C.F.R. § 1208.16(c) (requiring applicant to

4    show “that it is more likely than not that he or she would be

5    tortured if removed to the proposed country of removal”);

6    Paul v. Gonzales, 444 F.3d 148, 155 (2d Cir. 2006) (“Unlike

7    an asylum claim, the CAT claim . . . requires a showing with

8    respect to future, rather than past, treatment.” (internal

9    quotation marks omitted)).

10       For the foregoing reasons, the petition for review is

11   DENIED.

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




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