    15-1548
    Jiang v. Lynch
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A200 914 915

                          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
    23rd day of June, two thousand sixteen.

    PRESENT:
             JON O. NEWMAN,
             RICHARD C. WESLEY,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    CHUN KAI JIANG,
             Petitioner,

                     v.                                              15-1548
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Joshua E. Bardavid, New York, N.Y.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Shelley
                                         R. Goad, Assistant Director; Kristin
                                         Moresi, Trial Attorney, Office of
                                         Immigration    Litigation,    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 Chun Kai Jiang, a native and citizen of the

People’s Republic of China, seeks review of an April 16, 2015,

decision of the BIA, affirming a February 14, 2013, decision

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

asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”).     In re Chun Kai Jiang, No. A200 914

915 (B.I.A. Apr. 16, 2015), aff’g No. A200 914 915 (Immig. Ct.

N.Y. City Feb. 14, 2013).    We assume the parties’ familiarity

with the underlying facts and procedural history in this case.

    Under the circumstances of this case, we review the IJ’s

decision as modified by the BIA.        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.     8 U.S.C.

§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

(2d Cir. 2008).

    The agency did not err in concluding that Jiang failed to

establish past persecution.      The BIA has defined persecution
                                 2
as a “threat to the life or freedom of, or the infliction of

suffering or harm upon, those who differ in a way regarded as

offensive.”   Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A.

1985),   overruled   in   part   on   other   grounds   by   INS   v.

Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili v.

U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006).     A valid

persecution claim may be based on harm other than threats to

life or freedom, including non-life-threatening violence and

physical abuse, Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d

Cir. 2006), but the harm must be sufficiently severe, rising

above “mere harassment,” Ivanishvili, 433 F.3d at 341.             The

difference between harassment and persecution is “necessarily

one of degree that must be decided on a case-by-case basis.”

Ivanishvili, 433 F.3d at 341.         Here, the agency reasonably

determined that Jiang’s minor beating and brief detentions did

not rise to the level of persecution; Jiang did not sustain

physical injuries from his 1994 beating or suffer any physical

harm during his brief detentions.      Jian Qiu Liu v. Holder, 632

F.3d 820, 822 (2d Cir. 2011); see also Mei Fun Wong v. Holder,

633 F.3d 64, 72 (2d Cir. 2011).


                                 3
    Relying on Beskovic v. Gonzales, 467 F.3d 223 (2d Cir.

2006), Jiang insists that the agency erred as a matter of law

by failing to evaluate his injuries in the context of which such

treatment occurred — namely, his wife’s forced abortions.        He

contends that if his abuse was inflicted in this context, the

degree of mistreatment rises to the level of persecution

irrespective   of   any   physical     injury.      This   argument

mischaracterizes the holding of Beskovic, which explicitly

addressed “persecution . . . in the context of an arrest or

detention on the basis of a protected ground.”        Beskovic, 467

F.3d at 226 (emphasis added).       Under the standard established

in Beskovic, even a “minor” beating in detention may rise to

the level of persecution.     Id. at 226.        The physical abuse

Jiang described did not occur while he was in police custody;

rather, he testified that he was beaten by family planning

officials when he tried to stop them from entering his home in

connection with his wife’s first forced abortion in September

1944.   Even if we assume that the period of several hours during

which the police prevented him from leaving his home following

this event constituted “detention” as that term was used in

Beskovic, he was not assaulted during that period.         And while
                                4
he was briefly held at his home during his wife’s first forced

IUD insertion in December 1994 and was briefly detained at the

family planning office in 2009 until his wife’s second forced

abortion was completed, he does not claim to have been beaten

or physically mistreated on those occasions.        Thus, on this

record, the agency reasonably concluded that Jiang failed to

establish past persecution.

    Jiang also asserts that the agency failed to consider the

cumulative impact of the harm he experienced in China.        This

argument   is   contradicted   by   the   BIA’s   decision,   which

explicitly determined that “when viewed cumulatively,” the

incidents Jiang described were “not so severe as to amount to

persecution.”

    Last, Jiang asserts that the agency erred in failing to

consider the psychological and emotional harm he suffered on

account of his wife’s two forced abortions.       Although the BIA

and IJ did not explicitly reference Jiang’s emotional and

psychological harm in their decisions, this Court presumes that

the agency “has taken into account all of the evidence before

[it], unless the record compellingly suggests otherwise.”

Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17
                                5
(2d Cir. 2006).     The agency’s failure to explicitly mention

Jiang’s emotional and psychological harm does not compellingly

suggest that it was ignored because Jiang did not highlight such

harm as a central aspect of his claim and “substantial emotional

distress,” as a general matter, does not rise to the level of

persecution.    Ivanishvili, 433 F.3d at 341 (persecution must

be distinguished from “mere harassment,” which consists of

“[w]ords, conduct, or action . . . that . . . annoys, alarms,

or   causes    substantial   emotional   distress[.]”    (internal

quotations omitted)).

     Because Jiang did not demonstrate past persecution, he was

not entitled to a presumption of a well-founded fear of

persecution.     See 8 C.F.R. § 1208.13(b)(1).          The agency

therefore did not err in denying asylum.

     For the foregoing reasons, the petition for review is

DENIED.

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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