         13-663
         Yu v. Holder
                                                                                        BIA
                                                                                   Videla, IJ
                                                                               A098 690 900
                         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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 19th day of May, two thousand fourteen.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       YONG SEN YU,
14                Petitioner,
15
16                      v.                                      13-663
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Jay Ho Lee, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Carl McIntyre, Assistant
27                                     Director; Christina Bechak
28                                     Parascandola, Trial Attorney, Office
29                                     of Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review is DENIED.

 5       Yong Sen Yu, a native and citizen of the People’s

 6   Republic of China, seeks review of a January 29, 2013,

 7   decision of the BIA affirming the March 3, 2011, decision of

 8   Immigration Judge (“IJ”) Gabriel C. Videla, denying him

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).    In re Yong Sen Yu, No.

11   A098 690 900 (B.I.A. Jan. 29, 2013), aff’g No. A098 690 900

12   (Immig. Ct. N.Y. City Mar. 3, 2011).   We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       We have reviewed both the IJ’s and the BIA’s opinions

16   “for the sake of completeness.”   Zaman v. Mukasey, 514 F.3d

17   233, 237 (2d Cir. 2008).   The applicable standards of review

18   are well-established.   See 8 U.S.C. § 1252(b)(4)(B); see

19   also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.

20   2009).

21       It is undisputed that Yu is not eligible for asylum

22   solely on the basis of his wife’s forced abortion.     See Shi


                                   2
 1   Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-310

 2   (2d Cir. 2007).   Nevertheless, he can still qualify for

 3   asylum or withholding of removal by demonstrating that:

 4   (1) he engaged in “other resistance” to the family planning

 5   policy; and (2) he suffered harm rising to the level of

 6   persecution, or he had a well-founded fear or likelihood of

 7   suffering such harm as a direct result of his resistance.

 8   See id. at 313; see also 8 U.S.C. § 1101(a)(42); 8 C.F.R.

 9   § 1208.16(b).

10       Even assuming that Yu established “resistance,” the

11   agency did not err in finding that he failed to allege harm

12   amounting to persecution on account of that resistance.

13   Indeed, he did not demonstrate that he suffered economic

14   persecution because he failed to provide any evidence

15   establishing that the fines imposed caused him “severe

16   economic disadvantage.”   In re T-Z-, 24 I. & N. Dec. 163,

17   170-75 (B.I.A. 2007); see also Guan Shan Liao v. U.S. Dep’t

18   of Justice, 293 F.3d 61, 70 (2d Cir. 2002).   Furthermore,

19   the agency did not err in finding that Yu’s detention for

20   five hours, during which he was not mistreated, did not

21   constitute persecution.   See Beskovic v. Gonzales, 467 F.3d

22   223, 226 n.3 (2d Cir. 2006) (noting that the Court had


                                   3
 1   previously held that two brief detentions without physical

 2   mistreatment did not constitute persecution); see also

 3   Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir.

 4   2006).

 5          Moreover, although the IJ may have erred by failing to

 6   evaluate the cumulative impact of these incidents, the BIA

 7   reasonably concluded that, considered in the aggregate, the

 8   harm Yu experienced did not rise to the level of

 9   persecution, particularly when he did not testify to having

10   personally suffered any specific physical, mental, or

11   economic harm.    See Mei Fun Wong v. Holder, 633 F.3d 64, 72

12   (2d Cir. 2011) (“We have emphasized that persecution is an

13   extreme concept that does not include every sort of

14   treatment our society regards as offensive.”) (internal

15   quotation marks omitted).    Thus, the agency did not err in

16   concluding that Yu failed to establish past persecution

17   qualifying him for relief.    See Shi Liang Lin, 494 F.3d at

18   309.

19          Absent past persecution, an alien may establish

20   eligibility for asylum by demonstrating a well-founded fear

21   of future persecution.    See 8 C.F.R. § 1208.13(b)(2); see

22   also Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.

23   2004).    The agency reasonably concluded that Yu failed to

                                    4
 1   demonstrate that his fear of future persecution was well-

 2   founded.    Yu paid a fine for having a child out of wedlock

 3   and at a younger age than permitted, yet he did not

 4   demonstrate that family planning officials would continue to

 5   consider him in violation of the family planning policy

 6   based on the birth of his one child more than twenty years

 7   ago.    See Jian Hui Shao v. Mukasey, 546 F.3d 138, 142-43,

 8   160 n.20, 169-70 (2d Cir. 2008); see also Jian Xing Huang v.

 9   INS, 421 F.3d 125, 129 (2d Cir. 2005).     Additionally, as the

10   agency found, Yu failed to submit evidence demonstrating

11   that similarly situated individuals face forced

12   sterilization.    See Jian Hui Shao, 546 F.3d at 160-61; see

13   also Jian Xing Huang, 421 F.3d at 129.

14          Accordingly, because the agency did not err in finding

15   that Yu failed to demonstrate either past persecution or a

16   well-founded fear of persecution, it reasonably denied him

17   asylum and withholding of removal because those claims were

18   based on the same factual predicate.     See Paul v. Gonzales,

19   444 F.3d 148, 156-57 (2d Cir. 2006).     Yu does not challenge

20   the agency’s denial of CAT relief.

21          For the foregoing reasons, the petition for review is

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

23   removal that the Court previously granted in this petition
                                    5
1   is VACATED, and any pending motion for a stay of removal in

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

3   oral argument in this petition is DENIED in accordance with

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

5   Circuit Local Rule 34.1(b).

6                                 FOR THE COURT:
7                                 Catherine O’Hagan Wolfe, Clerk
8
9




                                   6
