             09-2873-ag
             Zhu v. Holder
                                                                                                                                               BIA
                                                                                                                                          Weisel, IJ
                                                                                                                                       A097 701 757
                                          UNITED STATES COURT OF APPEALS
                                              FOR THE SECOND CIRCUIT

                                                              SUMMARY ORDER
     R U L IN G S B Y SU M M A R Y O R D E R D O N O T H A V E P R E CE D E N T IA L E F FE C T . C ITATIO N T O A SU M M AR Y O RD E R FILE D O N O R A FT E R
     J AN U ARY 1, 2007, IS PERM ITTED AN D IS GO VER N ED BY F ED ER AL R U LE O F A P PE LL AT E P R O C E D U R E 32.1 AN D T H IS C O U RT ’S L O CAL
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     O R D E R M U ST SE R V E A C O P Y O F IT O N A N Y P AR T Y N O T R E P R E SE N T E D B Y CO U N SE L


 1                At a stated term of the United States Court of Appeals
 2           for the Second Circuit, held at the Daniel Patrick Moynihan
 3           United States Courthouse, 500 Pearl Street, in the City of
 4           New York, on the 2 nd day of February, two thousand ten.
 5
 6           PRESENT:
 7                    RALPH K. WINTER,
 8                    PIERRE N. LEVAL,
 9                    DEBRA ANN LIVINGSTON,
10                             Circuit Judges.
11           _______________________________________
12
13           YUAN SHANG ZHU, ALSO KNOWN AS YONG
14           SHANG ZHU,
15                    Petitioner,
16
17                                   v.                                                                         09-2873-ag
18                                                                                                              NAC
19           ERIC H. HOLDER, JR., UNITED STATES
20           ATTORNEY GENERAL,
21                    Respondent.
22           ______________________________________
23
24           FOR PETITIONER:                                        Michael Brown, Law Offices of
25                                                                  Michael Brown, New York, New York.
 1   FOR RESPONDENT:          Tony West, Assistant Attorney
 2                            General; Christopher C. Fuller,
 3                            Senior Litigation Counsel, Office of
 4                            Immigration Litigation; Aaron R.
 5                            Petty, Trial Attorney, Office of
 6                            Immigration Litigation, United
 7                            States Department of Justice,
 8                            Washington, D.C.
 9
10          UPON DUE CONSIDERATION of this petition for review of a

11   Board of Immigration Appeals (“BIA”) decision, it is hereby

12   ORDERED, ADJUDGED, AND DECREED that the petition for review

13   is DENIED.

14          Petitioner Yuan Shang Zhu, a native and citizen of the

15   People’s Republic of China, seeks review of a June 18, 2009

16   order of the BIA affirming the November 6, 2007 decision of

17   Immigration Judge (“IJ”) Robert D. Weisel denying his

18   application for asylum, withholding of removal, and relief

19   under the Convention Against Torture (“CAT”).    In re Yuan

20   Shang Zhu, No. A097 701 757 (B.I.A. Jun. 18, 2009), aff’g

21   No. A097 701 757 (Immig. Ct. N.Y. City Nov. 6, 2007).    We

22   assume the parties’ familiarity with the underlying facts

23   and procedural history in this case.

24          Under the circumstances of this case, we review the

25   IJ’s decision as modified by the BIA decision, i.e., minus

26   the arguments for denying relief that were rejected by the

27   BIA.    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

                                    2
1    520, 522 (2d Cir. 2005).           The applicable standards of review

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

3    Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

4    I.     Asylum and Withholding of Removal

5           A.       Past Persecution

6           Zhu argues that he suffered past persecution because he

7    was pushed and beaten on a single occasion while trying to

8    prevent family planning officials from removing his wife

9    from their home for the involuntary insertion of an IUD.

10   See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296,

11   301 (2d Cir. 2007).        Although he acknowledges that his

12   “injuries were minor” and that he did not require medical

13   attention, Zhu argues that the agency failed to consider

14   that because the beating occurred in his home, he was

15   humiliated and effectively detained. 1         However, persecution

16   is the infliction of suffering or harm on the basis of a

17   protected ground that is of sufficient severity as to rise

18   above “mere harassment” – even harassment causing


                 1
                 Although the government argues that Zhu failed to
          exhaust his claim that the humiliation he endured
          constituted persecution, Zhu challenged the IJ’s
          determination that his beating did not constitute past
          persecution before the BIA, and we do not hold a
          petitioner to “the exact contours of his argument below.”
          See Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005).

                                           3
1    substantial emotional distress.     Ivanishvili v. U.S. Dep’t

2    of Justice, 433 F.3d 332, 341 (2d Cir. 2006).     The agency

3    properly considered the context in which Zhu’s beating

4    occurred, and reasonably found that Zhu’s testimony did not

5    establish that he suffered past persecution.     See Beskovic

6    v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006).

7        B.     Well-Founded Fear

8        Because the BIA considered whether Zhu established a

9    well-founded fear of sterilization as a result of violating

10   the family planning policy, we consider the issue exhausted.

11   See Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d Cir.

12   2006).    The IJ noted, however, that there is no “current

13   information or evidence to suggest that family planning

14   officials have a desire to harm [Zhu] if he returns to

15   China.”    Contrary to Zhu’s claim here, his wife’s affidavit

16   does not provide such information as it does not address any

17   current harms that he might face.     Thus, because the agency

18   reasonably noted that the record was devoid of evidence

19   suggesting “family planning officials have a desire to harm

20   him,” record evidence supports its decision.     Jian Xing

21   Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per curiam)

22   (holding that, absent solid support in the record for the



                                    4
1    petitioner’s assertion that he would be subjected to

2    persecution, his fear was ‘speculative at best’).    And

3    because Zhu was unable to meet his burden for asylum, he has

4    necessarily failed to meet the higher burden required for

5    withholding of removal.    See Paul v. Gonzales, 444 F.3d 148,

6    156 (2d Cir. 2006).

7    II.   CAT Relief

8          Although Zhu sets forth the standard for CAT relief in

9    his brief before this Court, he does not challenge the basis

10   of the IJ’s denial of CAT relief – that he did not meet his

11   burden of showing that he would be subject to anything

12   amounting to torture – or otherwise argue that any evidence

13   established a likelihood of torture upon his return to

14   China.    Accordingly, we deem any challenge to the agency’s

15   denial of CAT relief waived.    Yueqing Zhang v. Gonzales, 426

16   F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

17         For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

20   is VACATED, and any pending motion for a stay of removal in

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

22   oral argument in this petition is DENIED in accordance with



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

2   Circuit Local Rule 34(b).
3
4
5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
8
9




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