Xie v. Barr ( 2019 )

17-1131
Xie v. Barr
BIA
Poczter, IJ
A205 897 893
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 13th day of May, two thousand nineteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 GUOLIANG XIE,
14 Petitioner,
15
16 v. 17-1131
17 NAC
18 William P. Barr,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Mary Jane
27 Candaux, Assistant Director;
28 Matthew Connelly, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of
31 Justice, Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Guoliang Xie, a native and citizen of the
6 People’s Republic of China, seeks review of the BIA’s June
7 10, 2016, decision, affirming a February 27, 2015, decision
8 of an Immigration Judge (“IJ”) denying Xie’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Guoliang Xie, No.
11 A 205 897 893 (B.I.A. June 10, 2016), aff’g No. A 205 897 893
12 (Immig. Ct. N.Y. City Feb. 27, 2015). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Because Xie appealed only the IJ’s initial decision
16 concerning past persecution to the BIA, our review is limited
17 to that issue. See Chupina v. Holder, 570 F.3d 99, 105 (2d
18 Cir. 2009) (explaining that petitioner may petition for review
19 directly from an IJ’s decision if challenge is to denial of
20 a form of relief previously appealed to the BIA, i.e., where
21 a claim was previously exhausted). Within that restriction,
2
1 we have reviewed both the IJ and BIA’s decisions. See Zaman
2 v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (noting that,
3 where the BIA does not expressly adopt the IJ’s decision, the
4 court may consider both opinions “for the sake of
5 completeness.”)(internal quotation marks omitted). The
6 applicable standards of review are well established. See 8
7 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
8 513 (2d Cir. 2009).
9 The agency reasonably concluded that Xie did not
10 establish past harm rising to the level of persecution
11 stemming from his opposition to China’s family planning
12 policies. Xie testified that he was detained overnight by
13 family planning cadres in his work unit and was subsequently
14 demoted to a lower-paying position requiring less desirable
15 duties at his government-owned company. Because the
16 detention was brief and Xie was not harmed, Xie has not
17 established past persecution. See Joaquin-Porras v.
18 Gonzales, 435 F.3d 172, 182 (2d Cir. 2006) (upholding
19 determination that applicant was not eligible for withholding
20 of removal based on “brief” detention after which he was
21 released “without harm”).
3
1 Nor is Xie’s economic harm sufficient to establish past
2 persecution. Although persecution includes “non-physical
3 forms of harm such as the deliberate imposition of a
4 substantial economic disadvantage,” Mei Fun Wong v. Holder,
5 633 F.3d 64, 72 (2d Cir. 2011) (internal quotation marks
6 omitted), to constitute persecution, economic harm must be
7 “severe,” Matter of T-Z-, 24 I&N Dec. 163, 170-73 (BIA 2007);
8 see also Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d
9 61, 70 (2d Cir. 2002). Xie failed to show severe economic
10 harm. Although Xie’s pay was reduced, and he asserted that
11 he consequently found it difficult to buy food or pay for his
12 son’s tutoring, Xie lived in an apartment that his parents
13 bought for him and he did not need to repay the additional
14 money he borrowed from them. Xie’s testimony that he could
15 not obtain other work and lacked time to start his own
16 business was speculative because he did not attempt to apply
17 for any other jobs in the six years after his wife’s 2006
18 abortion. In addition, Xie did not know his wife’s salary
19 or whether it was reduced after her abortion, and he was able
20 to hide his demotion and financial situation from his wife
21 for six years. Given these facts, Xie did not establish a
4
1 deprivation of economic opportunity that rose to the level of
2 persecution. Cf. Huo Qiang Chen v. Holder, 773 F.3d 396, 409
3 (2d Cir. 2014) (remanding where evidence did not support
4 conclusion that applicant could pay fine “without becoming
5 impoverished or deprived of the necessities of life”).
6 Xie argues that his detention, combined with these
7 economic consequences, amounted to persecution. But the
8 economic harm constituted the bulk of Xie’s persecution
9 claim. Even considering the brief detention in conjunction
10 with the economic harm, the harm does not meet the legal
11 definition of persecution. See Mei Fun Wong v. Holder, 633
12 F.3d 64, 72 (2d Cir. 2011) (“[P]ersecution is an extreme
13 concept that does not include every sort of treatment our
14 society regards as offensive.” (internal quotation marks
15 omitted)).
16 Because only the agency’s past persecution determination
17 is before us, Xie’s failure to establish past persecution is
18 dispositive of asylum and withholding of removal. See Lecaj
19 v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010) (holding that
20 applicant who fails to meet burden for asylum necessarily
21 fails to meet higher burden for withholding of removal).
5
1 Because Xie did not appeal the IJ’s subsequent decision
2 regarding his fear of future harm, he cannot state a CAT
3 claim. See 8 C.F.R. § 1208.16(c) (requiring applicant to
4 show “that it is more likely than not that he or she would be
5 tortured if removed to the proposed country of removal”);
6 Paul v. Gonzales, 444 F.3d 148, 155 (2d Cir. 2006) (“Unlike
7 an asylum claim, the CAT claim . . . requires a showing with
8 respect to future, rather than past, treatment.” (internal
9 quotation marks omitted)).
10 For the foregoing reasons, the petition for review is
11 DENIED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
6