    16-976
    Ye v. Sessions
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A200 738 536
                          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 TO 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 Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    5th day of January, two thousand eighteen.

    PRESENT:
             DENNIS JACOBS,
             REENA RAGGI,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    SUN HUA YE,

                     Petitioner,

                     v.                                              16-976

    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,

             Respondent.
    _____________________________________

    FOR PETITIONER:                      G. VICTORIA CALLE, Calle &
                                         Associates, New York, NY.

    FOR RESPONDENT:                      KIMBERLY A. BURDGE, Trial Attorney,
                                         Office of Immigration Litigation
                                         (Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Song
                           Park, Senior Litigation Counsel, on
                           the brief), United States Department
                           of Justice, Washington, DC.

     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.

     Petitioner Sun Hua Ye, a native and citizen of the People’s
Republic of China, seeks review of a March 21, 2016, decision
of the BIA affirming a December 9, 2014, decision of an
Immigration Judge (“IJ”) denying Ye’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Sun Hua Ye, No. A200 738 536 (B.I.A.
Mar. 21, 2016), aff’g No. A200 738 536 (Immig. Ct. N.Y.C. Dec.
9, 2014). We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented.

     Under the circumstances of this case, we review the IJ’s
decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Because the
petition challenges only factual findings, we will grant Ye
relief only if “no reasonable fact-finder could have” made those
findings. Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003)
(per curiam) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.
2000)). The principal issue raised by the petition is whether
Ye met his burden of proving his eligibility for asylum.

     To qualify for asylum, Ye had to demonstrate that he
(1) engaged in “other resistance” to China’s family planning
policy, and (2) suffered harm rising to the level of persecution
or had a well-founded fear of suffering such harm as a direct
result of his resistance. Shi Liang Lin v. U.S. Dep’t of
Justice, 494 F.3d 296, 313 (2d Cir. 2007) (en banc). Assuming,
as the agency did, that Ye engaged in “other resistance” to
China’s family-planning policy, we find no error in the agency’s
conclusion that Ye failed to show past harm rising to the level
of persecution or a well-founded fear of future persecution.

                               2
     1. Ye argues that he suffered past persecution when he was
struck twice in the chest immediately before--and additional
times during--his 12-hour detention. In assessing whether
physical harm rises to the level of persecution, the agency must
take account of the context of that harm. See Jian Qiu Liu v.
Holder, 632 F.3d 820, 822 (2d Cir. 2011) (per curiam). As we
have acknowledged, a “minor beating . . . may rise to the level
of persecution if it occurred in the context of an arrest or
detention.” Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir.
2006) (emphasis added) (internal quotation marks omitted).
However, “[w]e have never held that a beating that occurs within
the context of an arrest or detention constitutes persecution
per se.” Jian Qiu Liu, 632 F.3d at 822. The harm suffered by
the petitioner must be sufficiently severe, rising above “mere
harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d
332, 341 (2d Cir. 2006).

     The agency considered the context of Ye’s harm and
reasonably concluded that it did not rise to the level of
persecution. Ye was punched in the chest a few times during
a single 12-hour period, he did not require medical attention,
and he did not suffer any lasting injuries. In Jian Qiu Liu,
we observed that comparable physical abuse before detention was
not persecution. See 632 F.3d at 821-22 (deeming reasonable
the BIA’s finding of no persecution when the petitioner was
“punched [] repeatedly in the face, chest, and back” by family
planning officials and detained for two days, because “he
suffered only minor bruising from [the] altercation,” “required
no formal medical attention[,] and had no lasting physical
effect”). The same conduct during detention warrants no
different conclusion here.

     Ye’s citation to Edimo-Doualla v. Gonzales, in which we
remanded for the BIA to consider whether the petitioner had been
persecuted despite having suffered no “permanent or serious
injury,” does not support a finding of unreasonableness in this
case. 464 F.3d 276, 283-84 (internal quotation marks omitted).
The petitioner in Edimo-Doualla suffered substantially greater
harm than did Ye, including “four beatings during a 1991 arrest;
a two-day arrest in 1996; multiple beatings and other forms of
abuse during a three-to-five-day arrest in 1997; a brief
                               3
detention . . . in 2000”; “multiple beatings in 2000 during each
of six days that [he] was held at a police station; and a
three-month prison term” during which he was “forced to bathe
with a bucket of water mixed with urine.” Id. at 283. While
Ye’s treatment was deplorable, the agency’s decision that it
did not rise to the level of persecution was reasonable on this
record.

     2. Ye argues that it should be inferred from the fact that
his wife was involuntarily sterilized in China that he has a
well-founded fear of future persecution there. However, the
law is clear that Ye cannot automatically establish a
well-founded fear of future persecution based on harm suffered
by his wife. See Shi Liang Lin, 494 F.3d at 309-10. And as
the agency reasonably concluded, Ye’s fear is not “objectively
reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d
Cir. 2004). There is little reason to think that Ye will face
mistreatment rising to the level of persecution from family
planning officials: Ye and his wife have already been punished
for violating China’s family planning policy, and they cannot
conceive another child together. Moreover, Ye’s wife (who
remains in China) has suffered no harassment by the authorities
after she paid the family planning fine. See Melgar de Torres
v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding that a claimed
fear of future persecution is undermined when
similarly-situated family members remain unharmed in the
petitioner’s native country). There is no evidence in the
record to compel a conclusion different from the one reached
by the agency.

     Given that the agency reasonably found that Ye failed to
demonstrate both past persecution and a well-founded fear of
future persecution, it did not err in denying him asylum. For
the same reason, the agency did not err in denying Ye withholding
of removal and relief under the CAT, both of which require even
greater showings. Lecaj v. Holder, 616 F.3d 111, 119-20 (2d
Cir. 2010).

     We have considered all of Ye’s arguments and conclude that
they are without merit. The petition for review is DENIED.
Any stay of removal previously granted in this petition is
                               4
VACATED, and any 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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