10-2090-ag
Shi v. Holder
                                                                                 BIA
                                                                        Balasquide, IJ
                                                                        A099 928 477
                 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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 1st day of September, two thousand eleven.

PRESENT:
         JON O. NEWMAN,
         JOSÉ A. CABRANES,
         RAYMOND J. LOHIER, JR.,
              Circuit Judges.
______________________________________

GUO JIAN SHI,
         Petitioner,

                                                                   10-2090-ag
                v.                                                        NAC

ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
______________________________________

FOR PETITIONER:                James Costo, Brooklyn, New York.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Leslie McKay, Assistant Director; Sara
                               J. Bergene, Trial Attorney, Office of
                               Immigration     Litigation,     Civil
                               Division, United States Department of
                               Justice, Washington, D.C.
    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, Guo Jian Shi, a native and citizen of China,

seeks review of a May 12, 2010, decision of the BIA affirming

the May 29, 2008, decision of Immigration Judge (“IJ”) Javier

Balasquide denying his application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). In re Guo Jian Shi, No. A099 928 477 (B.I.A. May 12,

2010), aff’g   No. A099 928 477 (Immig. Ct. N.Y. City May 29,

2008). We assume the parties’ familiarity with the underlying

facts and procedural history of the case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision minus the arguments for denying relief that

were not relied upon by the BIA.   See Xue Hong Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The

applicable standards of review are well-established.    See 8

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

513 (2d Cir. 2009).

    As an initial matter, we lack jurisdiction to review the

agency’s denial of CAT relief because Shi failed to challenge

the IJ’s denial of CAT relief in his appeal to the BIA.   See


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8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119

(2d Cir. 2006).

    As to asylum and withholding of removal, the agency

reasonably concluded that Shi failed to demonstrate that he

suffered persecution or had a well founded fear or faced a

likelihood of persecution on account of his “other resistance”

to China’s family planning policy.               Shi was not per se

eligible for asylum or withholding of removal solely on the

basis   of   his   wife’s   forced   abortion,    but   he   could   have

qualified for relief by demonstrating that: (1) he engaged in

“other resistance” to the family planning policy; and (2) he

suffered harm rising to the level of persecution or has a

well-founded fear of suffering such harm as a direct result of

his resistance.      See Shi Liang Lin v. U.S. Dep’t of Justice,

494 F.3d 296, 309-310, 313 (2d Cir. 2007).

    The agency reasonably found, however, that the harms Shi

allegedly suffered on account of his resistance to China’s

family planning policy did not constitute persecution, as Shi

experienced only a single incident of physical mistreatment by

family planning officials, was not arrested or detained at the

time, and did not suffer any lasting physical effects from the

mistreatment.      Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d

332, 341 (2d Cir. 2006) (holding that “the difference between


                                 -3-
harassment and persecution is necessarily one of degree that

must be decided on a case-by-case basis”); Jian Qui Liu v.

Holder, 638 F.3d 820, 822 (2d Cir. 2011) (holding that a minor

beating by family planning officials prior to arrest and

detention by police, and carried out without any intention to

arrest or detain, need not constitute persecution).

     In addition, the agency reasonably determined that the

fine imposed on Shi and his wife for their violation of the

family planning policy did not constitute persecution, as Shi

ultimately paid the fine and did not argue or present evidence

of any economic disadvantage or deprivation suffered as a

result of the fine.      See Matter of T-Z-, 24 I. & N. Dec. 163,

170-71 (BIA 2007) (defining persecution as including “the

deliberate imposition of a severe economic disadvantage or the

deprivation of liberty, food, housing, employment or other

essentials of life.”); see also Guan Shao Liao v. U.S. Dep’t

of Justice, 293 F.3d 61, 67 (2d Cir. 2002) (requiring at least

a   showing   of   a   “deliberate   imposition   of   a   substantial

economic disadvantage”).

     Furthermore, the agency did not err in concluding that

Shi failed to demonstrate his eligibility for relief based on

a threat of future sterilization, as the agency reasonably

concluded that background materials in the record did not


                                 -4-
establish the use of forced sterilization in Shi’s home

province of Fujian.        See Jian Hui Shao v. Mukasey, 546 F.3d

138, 160-61, 169-70 (2d Cir. 2008); Siewe v. Gonzales, 480

F.3d 160, 167-68 (2d Cir. 2007) (Holding that “[w]here there

are two permissible views of the evidence, the fact-finder’s

choice    between   them   cannot    be    clearly   erroneous”   and   a

“reviewing court must defer to that choice so long as the

deductions    are   not    illogical      or   implausible”)   (internal

quotations and citations omitted).

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot.       Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                                 FOR THE COURT:
                                 Catherine O’Hagan Wolfe, Clerk




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