Filed: Jun. 23, 2016
Latest Update: Mar. 02, 2020
Summary: 15-1548 Jiang v. Lynch BIA Vomacka, IJ A200 914 915 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
Summary: 15-1548 Jiang v. Lynch BIA Vomacka, IJ A200 914 915 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 NOTA..
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15-1548
Jiang v. Lynch
BIA
Vomacka, IJ
A200 914 915
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 TO 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 Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
23rd day of June, two thousand sixteen.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
CHUN KAI JIANG,
Petitioner,
v. 15-1548
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Joshua E. Bardavid, New York, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Shelley
R. Goad, Assistant Director; Kristin
Moresi, Trial Attorney, Office of
Immigration Litigation, United
States 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.
Petitioner Chun Kai Jiang, a native and citizen of the
People’s Republic of China, seeks review of an April 16, 2015,
decision of the BIA, affirming a February 14, 2013, decision
of an Immigration Judge (“IJ”) denying Jiang’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Chun Kai Jiang, No. A200 914
915 (B.I.A. Apr. 16, 2015), aff’g No. A200 914 915 (Immig. Ct.
N.Y. City Feb. 14, 2013). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
Under the circumstances of this case, we review the IJ’s
decision as modified by the BIA. Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
standards of review are well established. 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66
(2d Cir. 2008).
The agency did not err in concluding that Jiang failed to
establish past persecution. The BIA has defined persecution
2
as a “threat to the life or freedom of, or the infliction of
suffering or harm upon, those who differ in a way regarded as
offensive.” Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A.
1985), overruled in part on other grounds by INS v.
Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili v.
U.S. Dep’t of Justice,
433 F.3d 332, 342 (2d Cir. 2006). A valid
persecution claim may be based on harm other than threats to
life or freedom, including non-life-threatening violence and
physical abuse, Beskovic v. Gonzales,
467 F.3d 223, 226 n.3 (2d
Cir. 2006), but the harm must be sufficiently severe, rising
above “mere harassment,”
Ivanishvili, 433 F.3d at 341. The
difference between harassment and persecution is “necessarily
one of degree that must be decided on a case-by-case basis.”
Ivanishvili, 433 F.3d at 341. Here, the agency reasonably
determined that Jiang’s minor beating and brief detentions did
not rise to the level of persecution; Jiang did not sustain
physical injuries from his 1994 beating or suffer any physical
harm during his brief detentions. Jian Qiu Liu v. Holder,
632
F.3d 820, 822 (2d Cir. 2011); see also Mei Fun Wong v. Holder,
633 F.3d 64, 72 (2d Cir. 2011).
3
Relying on Beskovic v. Gonzales, 467 F.3d 223 (2d Cir.
2006), Jiang insists that the agency erred as a matter of law
by failing to evaluate his injuries in the context of which such
treatment occurred — namely, his wife’s forced abortions. He
contends that if his abuse was inflicted in this context, the
degree of mistreatment rises to the level of persecution
irrespective of any physical injury. This argument
mischaracterizes the holding of Beskovic, which explicitly
addressed “persecution . . . in the context of an arrest or
detention on the basis of a protected ground.”
Beskovic, 467
F.3d at 226 (emphasis added). Under the standard established
in Beskovic, even a “minor” beating in detention may rise to
the level of persecution.
Id. at 226. The physical abuse
Jiang described did not occur while he was in police custody;
rather, he testified that he was beaten by family planning
officials when he tried to stop them from entering his home in
connection with his wife’s first forced abortion in September
1944. Even if we assume that the period of several hours during
which the police prevented him from leaving his home following
this event constituted “detention” as that term was used in
Beskovic, he was not assaulted during that period. And while
4
he was briefly held at his home during his wife’s first forced
IUD insertion in December 1994 and was briefly detained at the
family planning office in 2009 until his wife’s second forced
abortion was completed, he does not claim to have been beaten
or physically mistreated on those occasions. Thus, on this
record, the agency reasonably concluded that Jiang failed to
establish past persecution.
Jiang also asserts that the agency failed to consider the
cumulative impact of the harm he experienced in China. This
argument is contradicted by the BIA’s decision, which
explicitly determined that “when viewed cumulatively,” the
incidents Jiang described were “not so severe as to amount to
persecution.”
Last, Jiang asserts that the agency erred in failing to
consider the psychological and emotional harm he suffered on
account of his wife’s two forced abortions. Although the BIA
and IJ did not explicitly reference Jiang’s emotional and
psychological harm in their decisions, this Court presumes that
the agency “has taken into account all of the evidence before
[it], unless the record compellingly suggests otherwise.”
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17
5
(2d Cir. 2006). The agency’s failure to explicitly mention
Jiang’s emotional and psychological harm does not compellingly
suggest that it was ignored because Jiang did not highlight such
harm as a central aspect of his claim and “substantial emotional
distress,” as a general matter, does not rise to the level of
persecution. Ivanishvili, 433 F.3d at 341 (persecution must
be distinguished from “mere harassment,” which consists of
“[w]ords, conduct, or action . . . that . . . annoys, alarms,
or causes substantial emotional distress[.]” (internal
quotations omitted)).
Because Jiang did not demonstrate past persecution, he was
not entitled to a presumption of a well-founded fear of
persecution. See 8 C.F.R. § 1208.13(b)(1). The agency
therefore did not err in denying asylum.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6
