     16-3403
     Tian v. Sessions
                                                                                   BIA
                                                                            Vomacka, IJ
                                                                           A200 929 153
                             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.

 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 3rd day of October, two thousand eighteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            ROSEMARY S. POOLER,
 9            ROBERT D. SACK,
10                 Circuit Judges.
11   _____________________________________
12
13   SHUHUI TIAN,
14            Petitioner,
15
16                      v.                                       16-3403
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Farah Loftus, Los Angeles, CA.
24
25   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
26                                      Attorney General; Erica B. Miles,
27                                      Senior Litigation Counsel;
28                                      Elizabeth K. Fitzgerald-Sambou,
29                                      Trial Attorney, Office of
30                                      Immigration Litigation, United
31                                      States Department of Justice,
32                                      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 Shuhui Tian, a native and citizen of the

6    People’s Republic of China, seeks review of a September 21,

7    2016, decision of the BIA affirming an October 17, 2014,

8    decision   of    an   Immigration   Judge       (“IJ”)   denying   Tian’s

9    application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).              In re Shuhui

11   Tian, No. A200 929 153 (B.I.A. Sept. 21, 2016), aff’g No.

12   A200 929 153 (Immig. Ct. N.Y. City Oct. 17, 2014).            We assume

13   the   parties’    familiarity   with      the    underlying   facts   and

14   procedural history in this case.

15         Under the circumstances of this case, we have reviewed

16   the IJ’s decision as modified by the BIA and review only

17   the ground for decision on which the BIA relied—Tian’s

18   failure to meet his burden of proof.            See Xue Hong Yang v.

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

20   The applicable standards of review are well established.

21   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

22   F.3d 510, 513 (2d Cir. 2009).           For the reasons that follow,

23   we conclude that the agency did not err in determining that

                                         2
1    Tian failed to demonstrate past persecution or a well-

2    founded fear of future persecution.

3    I.   Past Persecution

4         While the Immigration and Nationality Act does not define

5    persecution, see Baba v. Holder, 569 F.3d 79, 85 (2d Cir.

6    2009), the BIA has defined it as a “threat to the life or

7    freedom of, or the infliction of suffering or harm upon, those

8    who differ in a way regarded as offensive.”   Matter of Acosta,

9    19 I. & N. Dec. 211, 222 (B.I.A. 1985), overruled in part on

10   other grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);

11   accord Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332,

12   342 (2d Cir. 2006).     “The BIA must . . . be keenly sensitive

13   to the fact that a ‘minor beating’ or, for that matter, any

14   physical degradation designed to cause pain, humiliation, or

15   other suffering, may rise to the level of persecution if it

16   occurred in the context of an arrest or detention on the basis

17   of a protected ground.” Beskovic v. Gonzales, 467 F.3d 223,

18   226 n.3 (2d Cir. 2006) (quoting Ivanishvili, 433 F.3d at

19   341)).   The harm must be sufficiently severe to rise above

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

21        The agency did not err by determining that Tian’s past

22   harm did not rise to the level of persecution.    8 U.S.C.

23   § 1252(b)(4) (A determination that an applicant has failed

                                     3
1    to meet his burden is “conclusive unless manifestly

2    contrary to the law and an abuse of discretion.”).    Tian’s

3    alleged harm—that family planning officials pushed him into

4    a corner, punched him in the stomach, slapped his face

5    causing his nose to bleed, and then detained him for two

6    days—is indistinguishable from the allegations in Jian Qiu

7    Liu v. Holder, 632 F.3d 820 (2d Cir. 2011).    In Jian Qiu

8    Liu, we declined to remand where the agency concluded that

9    the applicant’s past harm—being slapped in the face,

10   punched repeatedly, and detained for two days—did not rise

11   to the level of persecution.   632 F.3d at 821-23.

12   Accordingly, because the agency took Tian’s subsequent

13   detention into account when assessing the context of his

14   beating and correctly observed that Tian was beaten before

15   detention, was not mistreated while detained, and did not

16   suffer any lasting injury, we find no error in the agency’s

17   conclusion that this single incident does not constitute

18   persecution.   Id.; Beskovic, 467 F.3d at 226 (requiring

19   agency to consider context of mistreatment).

20   II. Future Persecution

21       Absent past persecution, an alien may still establish

22   eligibility for asylum by demonstrating a well-founded fear

23   of future persecution, which is a “subjective fear that is

                                    4
1    objectively reasonable.”     Dong Zhong Zheng v. Mukasey, 552

2    F.3d 277, 284 (2d Cir. 2009) (internal quotation marks

3    omitted); see also Y.C. v. Holder, 741 F.3d 324, 332 (2d

4    Cir. 2013) (“For an asylum claim, the applicant must show a

5    reasonable possibility of future persecution.”    (internal

6    quotation marks omitted)).    “In the absence of solid

7    support in the record,” a fear of persecution is not well

8    founded and “is speculative at best.”    Jian Xing Huang v.

9    U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005).

10       The agency did not err in determining that Tian failed

11   to establish a well-founded fear of future persecution.       8

12   U.S.C. § 1252(b)(4).   The agency reasonably found

13   speculative Tian’s claim that he would be persecuted on his

14   return to China for his past opposition to the family

15   planning policy because he remained in China for two and a

16   half years after his beating and detention without

17   incident, his wife has remained in China without harm, and

18   he provided no evidence that the Chinese government has any

19   continued interest in him.     Jian Xing Huang, 421 F.3d at

20   129; see Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d

21   Cir. 1999) (finding fear of future persecution diminished

22   when similarly-situated family members have remained).

23   Accordingly, because the agency reasonably found that Tian

                                     5
1    failed to demonstrate a well-founded fear of persecution,

2    it did not err in denying asylum or in concluding that he

3    necessarily failed to meet the higher burdens for

4    withholding of removal and CAT relief.    Y.C., 741 F.3d at

5    335.

6           For the foregoing reasons, the petition for review is

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

8    that the Court previously granted in this petition is VACATED,

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

10   is DISMISSED as moot.    Any pending request for oral argument

11   in this petition is DENIED in accordance with Federal Rule of

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

13   34.1(b).

14                            FOR THE COURT:
15                            Catherine O’Hagan Wolfe
16                            Clerk of Court




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