Filed: Jan. 24, 2011
Latest Update: Feb. 21, 2020
Summary: 09-5156-ag Chang v. Holder BIA LaForest, IJ A096 485 622 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 TH
Summary: 09-5156-ag Chang v. Holder BIA LaForest, IJ A096 485 622 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..
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09-5156-ag
Chang v. Holder
BIA
LaForest, IJ
A096 485 622
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 24 th day of January, two thousand eleven.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_______________________________________
KOK WEE CHANG,
Petitioner,
v. 09-5156-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Meer M. M. Rahman, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Jennifer Levings, Senior Litigation
Counsel; Dalin R. Holyoak, Trial At-
torney, Office of Immigration Litiga-
tion, Civil Division, U.S. 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.
The Petitioner, Kok Wee Chang, a native and citizen of
Malaysia, seeks review of a November 16, 2009, order of the
BIA affirming the February 28, 2008, decision of Immigration
Judge (“IJ”) Brigitte LaForest pretermitting his application
for asylum, and denying his application for withholding of
removal and relief under the Convention Against Torture
(“CAT”). In re Kok Wee Chang, No. A096 485 622 (B.I.A. Nov.
16, 2009), aff’g No. A096 485 622 (Immig. Ct. N.Y. City Feb.
28, 2008). As Chang does not address the pretermission of his
untimely asylum petition on appeal, we deem that issue
forfeited. See Yueqinq Zhang v. Gonzales, 426 F.3d 540, 541
n.1 (2d Cir. 2005). In any event, we generally lack jurisdic-
tion to review pretermission of an untimely application. See
8 U.S.C. § 1158(a)(3). In these circumstances we do not
consider Chang’s other arguments in support of his eligibility
for asylum. We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we consider both
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the IJ’s and the BIA’s opinions for the sake of completeness.
Jigme Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524,
528 (2d Cir. 2006). The applicable standards of review are
well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
Substantial evidence supports the IJ’s determination that
Chang failed to establish his eligibility for withholding of
removal. Although Chang argues that he established his
eligibility for withholding of removal based on “previous
violence” he endured as a Buddhist and social tensions in
Malaysia, the IJ reasonably found that the incidents of
harassment Chang had suffered did not rise to the level of
persecution and that he feared returning to Malaysia because
it would be difficult to find a job and obtain medical care
for his children. See Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d 332, 341 (2d Cir. 2006) (providing that in order to
constitute persecution, the alleged past harm must be
sufficiently severe, rising above “mere harassment”). Because
Chang failed to demonstrate that he suffered past persecution
or articulate any likelihood of persecution on account of a
protected ground, the IJ did not err in determining that Chang
did not establish his eligibility for withholding of removal.
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See 8 C.F.R. § 1208.16(b). We decline to address Chang’s
unexhausted arguments that there exists a pattern or practice
of persecution against Buddhists in Malaysia and that he is
eligible for relief based on his race. See Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
The IJ also did not err in determining that Chang did not
establish his eligibility for CAT relief. Chang’s argument
that the IJ failed to separately analyze his CAT claim is
without merit, as the IJ explicitly found that he offered no
testimony or evidence establishing a likelihood of torture
upon his return to Malaysia. Moreover, despite Chang’s bald
assertion that the IJ’s decision was not supported by the
record, he points to no specific evidence that contradicts any
of the IJ’s findings, and we presume that the IJ “has taken
into account all of the evidence before [her], unless the
record compellingly suggests otherwise.” Xiao Ji Chen v.
United States DOJ, 471 F.3d 315, 337 n.17 (2d Cir. 2006).
Thus, because Chang provided no evidence or testimony in
support of his CAT claim and because that claim was based on
the same factual predicate as his withholding of removal
claim, the IJ reasonably determined that Chang failed to
establish a likelihood of torture upon his return to Malaysia.
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See Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554, 567 (2d Cir.
2006)(“[T]orture requires proof of something more severe than
the kind of treatment that would suffice to prove
persecution.”).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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