Filed: Nov. 25, 2015
Latest Update: Mar. 02, 2020
Summary: 13-3147 Thong v. Lynch BIA Laforest, IJ A087 385 895 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: 13-3147 Thong v. Lynch BIA Laforest, IJ A087 385 895 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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13-3147
Thong v. Lynch
BIA
Laforest, IJ
A087 385 895
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of November, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 BOAY THONG,
14 Petitioner,
15
16 v. 13-3147
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Edward J. Cuccia, Ferro & Cuccia,
24 New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Anthony P. Nicastro, Senior
28 Litigation Counsel; D. Nicholas
29 Harling, Trial Attorney, Office of
30 Immigration Litigation, United
1 States Department of Justice,
2 Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Boay Thong, a native and citizen of
9 Malaysia, seeks review of a July 19, 2013, order of the BIA,
10 affirming the April 25, 2012, decision of an Immigration
11 Judge (“IJ”), which denied withholding of removal. In re
12 Boay Thong, No. A087 385 895 (B.I.A. July 19, 2013), aff’g
13 No. A087 385 895 (Immig. Ct. New York City Apr. 25, 2012).
14 We assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 Under the circumstances of this case, we have reviewed
17 the decisions of the IJ and the BIA “for the sake of
18 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
19 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
20 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
21 Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
22 Contrary to Thong’s assertions, the agency reasonably
23 determined that she failed to establish past persecution.
24 The BIA has defined persecution as “a threat to the life or
2
1 freedom of, or the infliction of suffering or harm upon,
2 those who differ in a way regarded as offensive.” In re
3 Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985), overruled,
4 in part, on other grounds by INS v. Cardoza-Fonseca, 480
5 U.S. 421 (1987); accord Ivanishvili v. U.S. Dep’t of
6 Justice,
433 F.3d 332, 342 (2d Cir. 2006). A past-
7 persecution finding may be based on something other than
8 harm to life or freedom, including non-life-threatening
9 violence and physical abuse, Beskovic v. Gonzales,
467 F.3d
10 223, 226 n.3 (2d Cir. 2006), but the harm must be
11 sufficiently severe to rise above “mere harassment,”
12
Ivanishvili, 433 F.3d at 341. The difference between
13 harassment and persecution is “necessarily one of degree
14 that must be decided on a case-by-case basis.”
Id.
15 As an initial matter, the agency did not err in finding
16 that Thong failed to establish past persecution on the basis
17 of the 1969 riots in Malaysia. Though Thong testified that
18 she and her family went into hiding and lived in panic for
19 the duration of the riots, the agency reasonably observed
20 that the riots occurred over forty years ago and that
21 neither Thong nor her family were harmed as a result. See
22 id.; Mei Fun Wong v. Holder,
633 F.3d 64, 72 (2d Cir. 2011)
3
1 (“[P]ersecution is an extreme concept that does not include
2 every sort of treatment our society regards as offensive.”
3 (internal quotation marks and citations omitted)).
4 The agency also did not err in finding that Thong
5 failed to establish past persecution on the basis of the
6 economic discrimination she endured. The BIA reasonably
7 determined that Thong’s factual allegations were
8 insufficient to establish the “deliberate imposition of
9 substantial economic disadvantage.” Guan Shan Liao v. U.S.
10 Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002) (internal
11 quotation marks omitted) (noting petitioner failed to show
12 substantial economic disadvantage because he provided “no
13 facts that would make it possible[] to evaluate his personal
14 financial circumstances in relation to” the alleged economic
15 harm); accord In re T-Z-, 24 I. & N. Dec. 163, 170-75
16 (B.I.A. 2007). Here, Thong failed to submit any evidence of
17 her personal financial circumstances from which to assess
18 the impact of the alleged economic discrimination.
19 Moreover, Thong claimed that she experienced economic
20 disadvantage only until she obtained Malaysian citizenship
21 at the age of twenty-one, and but for an error her father
22 made in filling out paperwork, she could have obtained
4
1 citizenship at or around the age of thirteen. Accordingly,
2 even considering her experiences in the aggregate, Thong
3 failed to establish that she suffered extreme harm amounting
4 to persecution. See Mei Fun Wong, 633 F.3d at 72;
5
Ivanishvili, 433 F.3d at 341.
6 Lastly, the agency did not err in determining that Thong
7 failed to establish a likelihood of future persecution.
8 The agency found that her fear of persecution was undermined
9 because her family remained in Malaysia unharmed and because
10 country conditions did not support a likelihood of
11 persecution. Those findings, which Thong does not
12 specifically challenge, are supported by the record, and
13 provide an adequate basis for determining that Thong failed to
14 make the requisite showing. See Melgar de Torres v. Reno, 191
15 F.3d 307, 313 (2d Cir. 1999) (finding claim of well founded
16 fear of persecution diminished where similarly situated family
17 members remain in the applicant’s native country unharmed);
18 Jian Xing Huang v. INS,
421 F.3d 125, 129 (2d Cir. 2005)
19 (holding that absent “solid support in the record,” a fear of
20 persecution is “speculative at best”).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
23 removal that the Court previously granted in this petition
5
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
6
