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,

(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,

(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

(b)(4)(B); Yanqin Weng v. Holder,

,

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,

(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

(2d Cir. 2011) (internal quotation marks

6 omitted), to constitute persecution, economic harm must be

7 “severe,” Matter of T-Z-,

(BIA 2007);

8 see also Guan Shan Liao v. U.S. Dep’t of Justice,

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,

, 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

(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,

(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

(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,

(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