RUI QI LIAN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 385 F. App'x 55

SUMMARY ORDER Rui Qi Lian, a native and citizen of the People’s Republic of China, seeks review of a July 31, 2009, order of the BIA affirming the November 29, 2007, decision of Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Rui Qi Lian, No. [ AXXX XXX XXX ] (B.I.A. July 31, 2009), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Nov. 29, 2007). 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 decision. See 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. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). The BIA’s finding that Lian failed to establish past persecution is supported by the record, as his allegations of a brief detention do not reach the level of persecution. See Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir.2006); Ivanishvili v. U.S.

Dep’t of Justice, 433 F.3d 332, 341-342 (2d Cir.2006). Accordingly, we need not reach Lian’s argument that his actions constituted resistance to the family planning policy because even if they did, his treatment at the hands of the family planning officials did not reach a level that constitutes persecution. See Ivanishvili, 433 F.3d at 341-342. The agency also reasonably found that Lian’s residence in China for ten years following the incident undermined his claim that he had a well-founded fear of future persecution. See Melgar de Torres v. Reno, 191, F.3d 307, 313 (2d Cir.1999).

Contrary to Lian’s argument, the BIA’s application of Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), to his claims did not violate his due process rights. See De Quan Yu v. U.S. Atty. Gen., 568 F.3d 1328, 1333 (11th Cir.2009). The BIA applies the law in effect at the time it enters a decision. See 8 C.F.R. § 1003.1(d)(3)(ii); c.f. NLRB v. Coca-Cola Bottling Co., 55 F.3d 74, 78 (2d Cir.1995)(“Appellate courts ordinarily apply the law in effect at the time of the appellate decision.”).

Because Lian was unable to demonstrate past persecution or a well-founded fear of future persecution to meet his burden for asylum, he necessarily failed to meet the higher burden required for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Lian does not challenge the agency’s denial of his application for CAT relief. 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).