19-2455 Wu v. Garland BIA Wright, IJ A205 628 610 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 15th day of June, two thousand twenty-one. 5 6 PRESENT: 10 Circuit Judges. 11 _____________________________________ 12 14 Petitioner, 15 16 v. 19-2455 17 NAC 20 Respondent.* 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, Esq., New York, 24 NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Stephen J.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 Flynn, Assistant Director; Lynda 2 A. Do, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Xifeng Wu, a native and citizen of the
12 People’s Republic of China, seeks review of a July 17, 2019
13 decision of the BIA affirming a February 20, 2018 decision of
14 an Immigration Judge (“IJ”), which denied asylum, withholding
15 of removal, and relief under the Convention Against Torture
16 (“CAT”). In re Xifeng Wu, No. A205 628 610 (B.I.A. July 17,
17 2019), aff’g No. A205 628 610 (Immig. Ct. N.Y.C. Feb. 20,
18 2018). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 We review both the IJ’s and the BIA’s opinions “for the
21 sake of completeness.” Wangchuck v. Dep’t of Homeland Sec.,
22 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards
23 of review are well established. See 8 U.S.C. §
24 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
25 Cir. 2009).
2 1 The agency did not err in finding that Wu failed to
2 demonstrate that the harm he suffered for opposing China’s
3 family planning policy rose to the level of persecution.
4 “[P]ersecution is an extreme concept that does not include
5 every sort of treatment our society regards as offensive.”
6 Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)
7 (internal quotation marks omitted). Past persecution may
8 “encompass[] a variety of forms of adverse treatment,
9 including non-life-threatening violence and physical abuse,”
10 but the harm must be sufficiently severe, rising above “mere
11 harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d
12 332, 341 (2d Cir. 2006) (internal quotation marks omitted).
13 “‘[T]he difference between harassment and persecution is
14 necessarily one of degree,’ . . . the degree must be assessed
15 with regard to the context in which the mistreatment occurs.”
16 Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006)
17 (quoting Ivanishvili, 433 F.3d at 341). “The [agency] must,
18 therefore, be keenly sensitive to the fact that a ‘minor
19 beating’ or, for that matter, any physical degradation
20 designed to cause pain, humiliation, or other suffering, may
21 rise to the level of persecution if it occurred in the context
22 of an arrest or detention on the basis of a protected ground.”
3 1 Id.
2 In determining whether Wu established past persecution,
3 the agency acknowledged Beskovic. The agency did not err in
4 concluding that, even though Wu’s beating occurred in
5 detention and was reprehensible, it did not rise to the level
6 of persecution under Beskovic because he was not severely
7 beaten or injured and he was held for only one night. See
8 Mei Fun Wong, 633 F.3d at 72; cf. Jian Qiu Liu v. Holder, 632
9 F.3d 820, 822 (2d Cir. 2011) (finding no error in the agency’s
10 determination that applicant failed to establish past
11 persecution when before an “arrest and detention by local
12 police, he suffered only minor bruising from an altercation
13 with family planning officials, which required no formal
14 medical attention and had no lasting physical effect”).
15 Because Wu did not demonstrate past persecution, he was not
16 entitled to a presumption of a well-founded fear of
17 persecution on account of his resistance to the family
18 planning policy. See 8 C.F.R. § 1208.13(b)(1).
19 Absent past persecution, an applicant may establish
20 eligibility for asylum by demonstrating a well-founded fear
21 of future persecution, 8 C.F.R. § 1208.13(b)(2), “which
22 requires that the alien present credible testimony that he
4 1 subjectively fears persecution and establish that his fear is
2 objectively reasonable,” Ramsameachire v. Ashcroft, 357 F.3d
3 169, 178 (2d Cir. 2004). “[I]n order to establish
4 eligibility for relief based exclusively on activities
5 undertaken after his arrival in the United States, an alien
6 must make some showing that authorities in his country of
7 nationality are (1) aware of his activities or (2) likely to
8 become aware of his activities.” Hongsheng Leng v. Mukasey,
9 528 F.3d 135, 138 (2d Cir. 2008).
10 The agency reasonably declined to credit unsworn letters
11 from Wu’s wife asserting that Chinese officials know about
12 Wu’s pro-democracy activities in the United States. The
13 agency pointed out that the letters were written by an
14 interested witness who was not subject to cross-examination.
15 See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013). And
16 the agency was not compelled to conclude that Wu’s testimony
17 in this regard was persuasive. See 8 U.S.C.
18 § 1158(b)(1)(B)(ii); Hongsheng Leng, 528 F.3d at 143.
19 Further, we have found “most unlikely” the “suggestion that
20 the Chinese government is aware of every anti-Communist or
21 pro-democracy piece of commentary published online,” and have
22 deemed speculative the assertion that the Chinese government
5 1 will likely discover political activities in the United
2 States and articles published online years before a
3 noncitizen is removed.
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19-2455 Wu v. Garland BIA Wright, IJ A205 628 610 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 15th day of June, two thousand twenty-one. 5 6 PRESENT: 10 Circuit Judges. 11 _____________________________________ 12 14 Petitioner, 15 16 v. 19-2455 17 NAC 20 Respondent.* 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, Esq., New York, 24 NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Stephen J.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 Flynn, Assistant Director; Lynda 2 A. Do, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Xifeng Wu, a native and citizen of the
12 People’s Republic of China, seeks review of a July 17, 2019
13 decision of the BIA affirming a February 20, 2018 decision of
14 an Immigration Judge (“IJ”), which denied asylum, withholding
15 of removal, and relief under the Convention Against Torture
16 (“CAT”). In re Xifeng Wu, No. A205 628 610 (B.I.A. July 17,
17 2019), aff’g No. A205 628 610 (Immig. Ct. N.Y.C. Feb. 20,
18 2018). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 We review both the IJ’s and the BIA’s opinions “for the
21 sake of completeness.” Wangchuck v. Dep’t of Homeland Sec.,
22 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards
23 of review are well established. See 8 U.S.C. §
24 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
25 Cir. 2009).
2 1 The agency did not err in finding that Wu failed to
2 demonstrate that the harm he suffered for opposing China’s
3 family planning policy rose to the level of persecution.
4 “[P]ersecution is an extreme concept that does not include
5 every sort of treatment our society regards as offensive.”
6 Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)
7 (internal quotation marks omitted). Past persecution may
8 “encompass[] a variety of forms of adverse treatment,
9 including non-life-threatening violence and physical abuse,”
10 but the harm must be sufficiently severe, rising above “mere
11 harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d
12 332, 341 (2d Cir. 2006) (internal quotation marks omitted).
13 “‘[T]he difference between harassment and persecution is
14 necessarily one of degree,’ . . . the degree must be assessed
15 with regard to the context in which the mistreatment occurs.”
16 Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006)
17 (quoting Ivanishvili, 433 F.3d at 341). “The [agency] must,
18 therefore, be keenly sensitive to the fact that a ‘minor
19 beating’ or, for that matter, any physical degradation
20 designed to cause pain, humiliation, or other suffering, may
21 rise to the level of persecution if it occurred in the context
22 of an arrest or detention on the basis of a protected ground.”
3 1 Id.
2 In determining whether Wu established past persecution,
3 the agency acknowledged Beskovic. The agency did not err in
4 concluding that, even though Wu’s beating occurred in
5 detention and was reprehensible, it did not rise to the level
6 of persecution under Beskovic because he was not severely
7 beaten or injured and he was held for only one night. See
8 Mei Fun Wong, 633 F.3d at 72; cf. Jian Qiu Liu v. Holder, 632
9 F.3d 820, 822 (2d Cir. 2011) (finding no error in the agency’s
10 determination that applicant failed to establish past
11 persecution when before an “arrest and detention by local
12 police, he suffered only minor bruising from an altercation
13 with family planning officials, which required no formal
14 medical attention and had no lasting physical effect”).
15 Because Wu did not demonstrate past persecution, he was not
16 entitled to a presumption of a well-founded fear of
17 persecution on account of his resistance to the family
18 planning policy. See 8 C.F.R. § 1208.13(b)(1).
19 Absent past persecution, an applicant may establish
20 eligibility for asylum by demonstrating a well-founded fear
21 of future persecution, 8 C.F.R. § 1208.13(b)(2), “which
22 requires that the alien present credible testimony that he
4 1 subjectively fears persecution and establish that his fear is
2 objectively reasonable,” Ramsameachire v. Ashcroft, 357 F.3d
3 169, 178 (2d Cir. 2004). “[I]n order to establish
4 eligibility for relief based exclusively on activities
5 undertaken after his arrival in the United States, an alien
6 must make some showing that authorities in his country of
7 nationality are (1) aware of his activities or (2) likely to
8 become aware of his activities.” Hongsheng Leng v. Mukasey,
9 528 F.3d 135, 138 (2d Cir. 2008).
10 The agency reasonably declined to credit unsworn letters
11 from Wu’s wife asserting that Chinese officials know about
12 Wu’s pro-democracy activities in the United States. The
13 agency pointed out that the letters were written by an
14 interested witness who was not subject to cross-examination.
15 See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013). And
16 the agency was not compelled to conclude that Wu’s testimony
17 in this regard was persuasive. See 8 U.S.C.
18 § 1158(b)(1)(B)(ii); Hongsheng Leng, 528 F.3d at 143.
19 Further, we have found “most unlikely” the “suggestion that
20 the Chinese government is aware of every anti-Communist or
21 pro-democracy piece of commentary published online,” and have
22 deemed speculative the assertion that the Chinese government
5 1 will likely discover political activities in the United
2 States and articles published online years before a
3 noncitizen is removed. Y.C., 741 F.3d at 334 (citing Jian
4 Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In
5 the absence of solid support in the record . . . [an
6 applicant’s] fear is speculative at best.”)). Accordingly,
7 the agency reasonably concluded that Wu failed to establish
8 that Chinese officials are aware of or likely to become aware
9 of his pro-democracy activities. See id.; Hongsheng Leng,
10 528 F.3d at 138. Alternatively, the agency reasonably found
11 that Wu failed to establish that similarly situated
12 individuals face persecution because “[t]he record is silent
13 as to whether the Chinese government views domestic pro-
14 democracy advocates differently from Chinese nationals who
15 espouse pro-democracy ideals abroad.” Y.C., 741 F.3d at 335.
16 Because Wu failed (1) to persuasively demonstrate that
17 authorities are aware or likely to become aware of his
18 political activities in the United States, or (2) to show an
19 objectively reasonable fear of persecution on account of
20 those activities, the agency reasonably concluded that he
21 failed to establish a well-founded fear of persecution. See
22 Y.C., 741 F.3d at 334–35; Hongsheng Leng, 528 F.3d at 142.
6 1 That finding was dispositive of asylum, withholding of
2 removal, and CAT relief, see Lecaj v. Holder, 616 F.3d 111,
3 119–20 (2d Cir. 2010) (failure to show fear of persecution
4 required for asylum “necessarily” precludes meeting higher
5 burden for withholding of removal and CAT relief), and thus
6 we do not reach the Government’s argument that Wu failed to
7 exhaust his CAT claim, see INS v. Bagamasbad, 429 U.S. 24, 25
8 (1976) (“As a general rule courts and agencies are not
9 required to make findings on issues the decision of which is
10 unnecessary to the results they reach.”).
11 For the foregoing reasons, the petition for review is
12 DENIED. All pending motions and applications are DENIED and
13 stays VACATED.
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court