Filed: Feb. 04, 2010
Latest Update: Mar. 02, 2020
Summary: 08-5664-ag Siu v. Holder BIA Nelson, IJ A098 563 370 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 NO
Summary: 08-5664-ag Siu v. Holder BIA Nelson, IJ A098 563 370 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 NOT..
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08-5664-ag
Siu v. Holder
BIA
Nelson, IJ
A098 563 370
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 4 th day of February, two thousand ten.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 YUEN CHUEN SIU,
14 Petitioner,
15
16 v. 08-5664-ag
17 NAC
18 ERIC H. HOLDER JR., UNITED STATES
19 ATTORNEY GENERAL, *
20 Respondent.
21 _______________________________________
22
23
24
25
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: John X. Wang, New York, New York.
2
3 FOR RESPONDENT: Tony West, Assistant Attorney
4 General; Terri J. Scadron, Assistant
5 Director; Genevieve Holm, Trial
6 Attorney, Office of Immigration
7 Litigation, United States Department
8 of Justice, 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 Yuen Chuen Siu, a native and citizen of the People’s
15 Republic of China, seeks review of a November 6, 2008 order
16 of the BIA that: (1) affirmed the October 26, 2006 decision
17 of Immigration Judge (“IJ”) Barbara A. Nelson, which
18 pretermitted his application for asylum and denied his
19 application for withholding of removal; and (2) denied his
20 motion to remand. In re Yuen Chuen Siu, No. A098 563 370
21 (B.I.A. Nov. 6, 2008), aff’g No. A098 563 370 (Immig. Ct.
22 N.Y. City Oct. 26, 2006). We assume the parties’
23 familiarity with the underlying facts and procedural history
24 in this case.
25 As an initial matter, because Siu does not challenge:
26 (1) the agency’s pretermission of his application for
27 asylum; (2) the agency’s finding that prosecution for
2
1 illegally departing China did not constitute persecution;
2 and (3) the BIA’s denial of his motion to remand, we deem
3 any such arguments abandoned. See Yueqing Zhang v.
4 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
5 When the BIA does not expressly “adopt” the IJ’s
6 decision, but its brief opinion closely tracks the IJ’s
7 reasoning, the Court may consider both the IJ’s and the
8 BIA’s opinions “for the sake of completeness.” Zaman v.
9 Mukasey,
514 F.3d 233, 237 (2d Cir. 2008). We review the
10 agency’s factual findings under the substantial evidence
11 standard. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.
12 Mukasey,
519 F.3d 90, 95 (2d Cir. 2008). We review de novo
13 questions of law and the application of law to undisputed
14 fact. Salimatou Bah v. Mukasey,
529 F.3d 99, 110 (2d Cir.
15 2008).
16 We find that the agency reasonably concluded that Siu
17 failed to demonstrate that he had suffered past persecution
18 in China. The BIA has defined persecution as “a threat to
19 the life or freedom of, or the infliction of suffering or
20 harm upon, those who differ in a way regarded as offensive.”
21 Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985). This
22 Court has clarified that a valid past persecution claim can
3
1 be based on harm other than threats to life or freedom,
2 including non-life-threatening violence and physical abuse.
3 Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006)
4 (citing Tian-Yong Chen v. INS,
359 F.3d 121, 128 (2d. Cir.
5 2004)). In order to constitute persecution, the alleged
6 harm must be sufficiently severe, rising above “mere
7 harassment.” Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d
8 332, 341 (2d Cir. 2006). Economic harm may constitute
9 persecution, however, “an applicant for asylum must
10 demonstrate a severe economic disadvantage.” In re T-Z-, 24
11 I. & N. Dec. 163, 173 (BIA 2007). Indeed, “[t]he economic
12 difficulties must be above and beyond those generally shared
13 by others in the country of origin and involve noticeably
14 more than mere loss of social advantages or physical
15 comforts.”
Id.
16 Although Siu testified before the IJ that his family
17 was deprived of food subsidies, education, medical benefits,
18 and housing in China, he provided no specific details of
19 ever being denied such benefits. Furthermore, Siu admitted
20 that when he was five years old, his family moved to Hong
21 Kong where he attended school for eleven years and suffered
22 no harm. Because Siu failed to describe any incident of
4
1 harm suffered, much less severe harm, the agency reasonably
2 determined that he did not establish that he had suffered
3 past persecution. See Ivanishvili, 433 F.3d at 341; In re
4 T-Z-, 24 I. & N. Dec. at 172-73.
5 Similarly, the agency did not err in finding that Siu
6 failed to demonstrate a likelihood of forced sterilization
7 on account of the birth of his U.S. citizen child. Indeed,
8 in light of the fact that Siu was not in violation of
9 China’s family planning policy with the birth of his one
10 child, the agency did not err in finding speculative his
11 fear of such persecution. See Jian Xing Huang v. INS, 421
12 F.3d 125, 129 (2d Cir. 2005). Accordingly, as Siu failed to
13 demonstrate either past persecution or a likelihood of
14 future persecution, the agency did not err in denying his
15 application for withholding of removal. See 8 C.F.R.
16 § 1208.16(b).
17 For the foregoing reasons, the petition for review is
18 DENIED. T he pending motion for a stay of removal in this
19 petition is DISMISSED as moot.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23
24
5
