         10-319-ag
         He v. Holder
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A200 037 310
                         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.

 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 27th day of April, two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT A. KATZMANN,
10                DENNY CHIN,
11                     Circuit Judges.
12       _______________________________________
13
14       JIN GING HE,
15                Petitioner,
16
17                      v.                                      10-319-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Ramesh K. Shrestha, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Anthony P. Nicastro, Senior
29                                     Litigation Counsel; D. Nicholas
 1                          Harling, Trial Attorney, Office of
 2                          Immigration Litigation, United
 3                          States Department of Justice,
 4                          Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Jin Ging He, a native and citizen of China, seeks

11   review of a December 30, 2009, order of the BIA affirming

12   the March 26, 2008, decision of Immigration Judge (“IJ”)

13   Gabriel C. Videla, which denied his application for asylum,

14   withholding of removal, and relief under the Convention

15   Against Torture (“CAT”).   In re Jin Ging He, No. A200 037

16   310 (B.I.A. Dec. 30, 2009), aff’g No. A200 037 310 (Immig.

17   Ct. N.Y. City Mar. 26, 2008).       We assume the parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20       Under the circumstances of this case, we review the

21   decision of the IJ as supplemented by the BIA.          Yan Chen v.

22   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).          The applicable

23   standards of review are well-established.       See Salimatou Bah

24   v. Mukasey, 529 F.3d 99, 110-11 (2d Cir. 2008); Shu Wen Sun

25   v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).       In     Shi Liang Lin

                                     2
 1   v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007), we

 2   determined that, under 8 U.S.C. § 1101(a)(42), an individual

 3   is not per se eligible for asylum based on the forced

 4   abortion or sterilization of a spouse or partner because

 5   “applicants can become candidates for asylum relief only

 6   based on persecution that they themselves have suffered or

 7   must suffer.”    Id. at 308    In the absence of per se

 8   persecution based on his wife’s abortions, He was required

 9   to show “other resistance to a coercive population control

10   program,” and that he was persecuted or has a well founded

11   fear of persecution as a result.       Id. at 308.

12       Without the making of a credibility determination, the

13   agency reasonably concluded that He nevertheless failed to

14   demonstrate persecution.      He’s claim is based on his wife’s

15   forced abortions, the fine to which he was subject, and his

16   parents’ detention.    But, the BIA has defined persecution as

17   a “threat to the life or freedom of, or the infliction of

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

19   as offensive.”    Matter of Acosta, 19 I. & N. Dec. 211, 222

20   (BIA 1985), overruled, in part, on other grounds, INS v.

21   Cardoza-Fonseca, 480 U.S. 421 (1987).      The harm must be

22   sufficiently severe, rising above “mere harassment.”


                                      3
 1   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

 2   Cir. 2006).    Economic harm may constitute persecution;

 3   however, “an applicant for asylum must demonstrate a severe

 4   economic disadvantage.”    Matter of T-Z-, 24 I. & N. Dec.

 5   163, 173 (BIA 2007).

 6          Here, the agency addressed the harassment described by

 7   He, and reasonably found that it was insufficiently severe

 8   to constitute persecution.     See Ivanishvili, 433 F.3d at

 9   341.    He presented no evidence to suggest that the one fine

10   he was forced to pay caused him severe economic

11   disadvantage, nor did he present any evidence indicating

12   that he suffered harm from his parents’ detention, or that

13   his parents were abused or harmed while detained.       While He

14   may well have been harmed by his wife’s abortions, the only

15   resistance to a coercive population control program that he

16   discussed was yelling at officials when they took his wife

17   for her second abortion.     When asked at his hearing if he

18   had any direct problem with family planning officials, He

19   answered, “[p]ersonally, no.”       Accordingly, the agency did

20   not err in concluding that He did not suffer past

21   persecution.    See id.

22



                                     4
 1       Because the agency reasonably concluded that He did not

 2   suffer past persecution, he is not entitled to a presumption

 3   of future persecution.     See 8 C.F.R. § 208.13(b).

 4   Furthermore, He makes no argument concerning a fear of

 5   future persecution independent of the incidents that

 6   occurred in the past, other than a generalized, conclusory

 7   statement.    Consequently, the agency reasonably concluded

 8   that He did not meet his burden of establishing a well-

 9   founded fear of future persecution.        See Jian Xing Huang v.

10   INS, 421 F.3d 125, 129 (2d Cir. 2005) (concluding that a

11   fear is not objectively reasonable if it lacks “solid

12   support” in the record and is merely “speculative at best”).

13   Because He did not establish a well-founded fear of

14   persecution, he necessarily cannot sustain the heavier

15   burden of showing it is more likely than not he will be

16   persecuted if he returns to China.        The agency therefore did

17   not err in denying his application for withholding of

18   removal.     See 8 C.F.R. § 1208.16(b).     Finally, He’s

19   allegation that it is reasonable to expect that he will be

20   tortured if he returns to China is not supported by any

21   argument or evidence, and it is insufficient to establish

22   eligibility for protection under CAT.        See 8 C.F.R.

23   §§ 1208.16(c)(2), 1208.18(a); Mu Xiang Lin v. U.S. Dep’t of

24   Justice, 432 F.3d 156, 160 (2d Cir. 2005).
                                     5
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12




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