20-3862 Wu v. Garland BIA Hom, IJ A200 235 253 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 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 24th day of August, two thousand twenty-two. 5 6 PRESENT: 10 Circuit Judges. 11 _____________________________________ 12 14 Petitioner, 15 16 v. 20-3862 17 NAC 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: John S. Yong, Esq., New York, 24 NY. 25 26 FOR RESPONDENT: Brian M. Boynton, Assistant 27 Attorney General; Kohsei Ugumori, 28 Senior Litigation Counsel; Sarah 29 K. Pergolizzi, Trial Attorney, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Er Liang Wu, a native and citizen of the
10 People’s Republic of China, seeks review of a November 9,
11 2020, decision of the BIA affirming an April 16, 2018,
12 decision of an Immigration Judge (“IJ”) denying asylum,
13 withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Er Liang Wu, No. A200 235 253
15 (B.I.A. Nov. 9, 2020), aff’g No. A200 235 253 (Immig. Ct.
16 N.Y. City Apr. 16, 2018). We assume the parties’ familiarity
17 with the underlying facts and procedural history.
18 We have reviewed the IJ’s decision as modified by the
19 BIA, i.e., minus the adverse credibility determination that
20 the BIA did not reach. See Xue Hong Yang v. U.S. Dep’t of
21 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
22 standards of review are well established. See 8 U.S.C.
23 § 1252(b)(4)(B); Wei Sun v. Sessions, 883 F.3d 23, 27 (2d
24 Cir. 2018). The agency did not err in finding that Wu failed
2 1 to adequately corroborate his claim that he suffered past
2 persecution when police detained, beat, and fined him on
3 account of his religious practice.
4 “[P]ersecution is ‘an extreme concept that does not
5 include every sort of treatment our society regards as
6 offensive.’” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
7 Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,
8 416 F.3d 192, 198 (2d Cir. 2005)). “‘[T]he difference
9 between harassment and persecution is necessarily one of
10 degree,’ . . . assessed with regard to the context in which
11 the mistreatment occurs.” Beskovic v. Gonzales, 467 F.3d
12 223, 226 (2d Cir. 2006) (quoting Ivanishvili v. U.S. Dep’t of
13 Justice, 433 F.3d 332, 341 (2d Cir. 2006)). “The [agency]
14 must, therefore, be keenly sensitive to the fact that a ‘minor
15 beating’ or, for that matter, any physical degradation
16 designed to cause pain, humiliation, or other suffering, may
17 rise to the level of persecution if it occurred in the context
18 of an arrest or detention on the basis of a protected ground.”
19 Id.
20 “The testimony of the applicant may be sufficient to
21 sustain the applicant’s burden without corroboration, but
22 only if the applicant satisfies the trier of fact that the
3 1 applicant’s testimony is credible, is persuasive, and refers
2 to specific facts sufficient to demonstrate that the
3 applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see
4 also id. § 1231(b)(3)(C); Wei Sun, 883 F.3d at 28. “In
5 determining whether the applicant has met the applicant’s
6 burden, the trier of fact may weigh the credible testimony
7 along with other evidence of record. Where the trier of fact
8 determines that the applicant should provide evidence that
9 corroborates otherwise credible testimony, such evidence must
10 be provided unless the applicant does not have the evidence
11 and cannot reasonably obtain the evidence.” 8 U.S.C.
12 § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C).
13 The agency reasonably required evidence to corroborate
14 Wu’s claim of past persecution because his testimony was not
15 particularly persuasive and did not refer to specific facts
16 showing that his harm rose to the level of persecution. See
17 8 U.S.C. § 1158(b)(1)(B)(ii); Wei Sun, 883 F.3d at 28; Mei
18 Fun Wong, 633 F.3d at 72. Indeed, Wu testified that police
19 used their fists and belts to hit him, but he did not testify
20 to details regarding the beating, to specific injuries, or to
21 injuries requiring medical care. Therefore, although Wu
22 testified that his beating occurred in detention, the record
4 1 did not reflect specific facts as to the severity of the
2 beating from which the IJ could determine that the harm
3 suffered rose to the level of persecution. See Mei Fun Wong,
4 633 F.3d at 72; cf. Jian Qiu Liu v. Holder, 632 F.3d 820, 822
5 (2d Cir. 2011) (finding no error in agency’s determination
6 that an alien failed to establish past persecution when “prior
7 to his arrest and detention by local police, he suffered only
8 minor bruising from an altercation with family planning
9 officials, which required no formal medical attention and had
10 no lasting physical effect”). The agency reasonably declined
11 to credit letters from Wu’s father and fellow church member
12 in China because they were unsworn, see Y.C. v. Holder, 741
13 F.3d 324, 332, 334 (2d Cir. 2013); regardless, those letters
14 did not corroborate Wu’s claim that he suffered harm that
15 rose to the level of persecution. Other than through his
16 father’s unsworn letter, Wu did not corroborate his assertion
17 that his parents paid a fine to secure his release from
18 detention. Contrary to Wu’s contention, such evidence was
19 reasonably available given his submission of unsworn letters
20 from individuals who could have submitted sworn affidavits or
21 testified telephonically and his testimony that his parents
22 had received a receipt for the fine payment. See 8 U.S.C.
5 1 § 1252(b)(4) (“No court shall reverse a determination made by
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20-3862 Wu v. Garland BIA Hom, IJ A200 235 253 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 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 24th day of August, two thousand twenty-two. 5 6 PRESENT: 10 Circuit Judges. 11 _____________________________________ 12 14 Petitioner, 15 16 v. 20-3862 17 NAC 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: John S. Yong, Esq., New York, 24 NY. 25 26 FOR RESPONDENT: Brian M. Boynton, Assistant 27 Attorney General; Kohsei Ugumori, 28 Senior Litigation Counsel; Sarah 29 K. Pergolizzi, Trial Attorney, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Er Liang Wu, a native and citizen of the
10 People’s Republic of China, seeks review of a November 9,
11 2020, decision of the BIA affirming an April 16, 2018,
12 decision of an Immigration Judge (“IJ”) denying asylum,
13 withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Er Liang Wu, No. A200 235 253
15 (B.I.A. Nov. 9, 2020), aff’g No. A200 235 253 (Immig. Ct.
16 N.Y. City Apr. 16, 2018). We assume the parties’ familiarity
17 with the underlying facts and procedural history.
18 We have reviewed the IJ’s decision as modified by the
19 BIA, i.e., minus the adverse credibility determination that
20 the BIA did not reach. See Xue Hong Yang v. U.S. Dep’t of
21 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
22 standards of review are well established. See 8 U.S.C.
23 § 1252(b)(4)(B); Wei Sun v. Sessions, 883 F.3d 23, 27 (2d
24 Cir. 2018). The agency did not err in finding that Wu failed
2 1 to adequately corroborate his claim that he suffered past
2 persecution when police detained, beat, and fined him on
3 account of his religious practice.
4 “[P]ersecution is ‘an extreme concept that does not
5 include every sort of treatment our society regards as
6 offensive.’” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
7 Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,
8 416 F.3d 192, 198 (2d Cir. 2005)). “‘[T]he difference
9 between harassment and persecution is necessarily one of
10 degree,’ . . . assessed with regard to the context in which
11 the mistreatment occurs.” Beskovic v. Gonzales, 467 F.3d
12 223, 226 (2d Cir. 2006) (quoting Ivanishvili v. U.S. Dep’t of
13 Justice, 433 F.3d 332, 341 (2d Cir. 2006)). “The [agency]
14 must, therefore, be keenly sensitive to the fact that a ‘minor
15 beating’ or, for that matter, any physical degradation
16 designed to cause pain, humiliation, or other suffering, may
17 rise to the level of persecution if it occurred in the context
18 of an arrest or detention on the basis of a protected ground.”
19 Id.
20 “The testimony of the applicant may be sufficient to
21 sustain the applicant’s burden without corroboration, but
22 only if the applicant satisfies the trier of fact that the
3 1 applicant’s testimony is credible, is persuasive, and refers
2 to specific facts sufficient to demonstrate that the
3 applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see
4 also id. § 1231(b)(3)(C); Wei Sun, 883 F.3d at 28. “In
5 determining whether the applicant has met the applicant’s
6 burden, the trier of fact may weigh the credible testimony
7 along with other evidence of record. Where the trier of fact
8 determines that the applicant should provide evidence that
9 corroborates otherwise credible testimony, such evidence must
10 be provided unless the applicant does not have the evidence
11 and cannot reasonably obtain the evidence.” 8 U.S.C.
12 § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C).
13 The agency reasonably required evidence to corroborate
14 Wu’s claim of past persecution because his testimony was not
15 particularly persuasive and did not refer to specific facts
16 showing that his harm rose to the level of persecution. See
17 8 U.S.C. § 1158(b)(1)(B)(ii); Wei Sun, 883 F.3d at 28; Mei
18 Fun Wong, 633 F.3d at 72. Indeed, Wu testified that police
19 used their fists and belts to hit him, but he did not testify
20 to details regarding the beating, to specific injuries, or to
21 injuries requiring medical care. Therefore, although Wu
22 testified that his beating occurred in detention, the record
4 1 did not reflect specific facts as to the severity of the
2 beating from which the IJ could determine that the harm
3 suffered rose to the level of persecution. See Mei Fun Wong,
4 633 F.3d at 72; cf. Jian Qiu Liu v. Holder, 632 F.3d 820, 822
5 (2d Cir. 2011) (finding no error in agency’s determination
6 that an alien failed to establish past persecution when “prior
7 to his arrest and detention by local police, he suffered only
8 minor bruising from an altercation with family planning
9 officials, which required no formal medical attention and had
10 no lasting physical effect”). The agency reasonably declined
11 to credit letters from Wu’s father and fellow church member
12 in China because they were unsworn, see Y.C. v. Holder, 741
13 F.3d 324, 332, 334 (2d Cir. 2013); regardless, those letters
14 did not corroborate Wu’s claim that he suffered harm that
15 rose to the level of persecution. Other than through his
16 father’s unsworn letter, Wu did not corroborate his assertion
17 that his parents paid a fine to secure his release from
18 detention. Contrary to Wu’s contention, such evidence was
19 reasonably available given his submission of unsworn letters
20 from individuals who could have submitted sworn affidavits or
21 testified telephonically and his testimony that his parents
22 had received a receipt for the fine payment. See 8 U.S.C.
5 1 § 1252(b)(4) (“No court shall reverse a determination made by
2 a trier of fact with respect to the availability of
3 corroborating evidence . . . unless . . . a reasonable trier
4 of fact is compelled to conclude that such corroborating
5 evidence is unavailable.”).
6 Absent past persecution, a noncitizen may establish
7 eligibility for asylum by demonstrating a well-founded fear
8 of future persecution. 8 C.F.R. § 1208.13(b)(2); Hongsheng
9 Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir. 2008). To do so,
10 an applicant must show either “a reasonable possibility he .
11 . . would be singled out individually for persecution” or
12 that the country of removal has a “pattern or practice” of
13 persecuting “similarly situated” individuals. 8 C.F.R.
14 § 1208.13(b)(2)(iii); Hongsheng Leng, 528 F.3d at 142–43.
15 The agency did not err in finding that Wu had not shown
16 a reasonable possibility that Chinese officials would single
17 him out based on his religious practice because he did not
18 allege that officials continued to express an interest in him
19 or look for him based on his 2010 detention for religious
20 practice and his father’s letter, which warranted little
21 weight, gave no factual basis for its allegation that
22 authorities continued to look for Wu. See Jian Xing Huang
6 1 v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence
2 of solid support in the record . . . [an applicant’s] fear is
3 speculative at best.”). The agency also did not err in
4 determining that Wu failed to establish a pattern or practice
5 of persecution of similarly situated individuals because,
6 despite evidence that Chinese officials restrict religious
7 activities and harass and persecute practitioners in some
8 areas of China, in other areas, Catholics practice their
9 religion without government interference. See 8 C.F.R.
10 § 1208.13(b)(2)(ii), (iii); see also Jian Liang v. Garland,
11 10 F.4th 106, 117 (2d Cir. 2021) (concluding that pattern or
12 practice claim fails when persecution of religious
13 practitioners is not nationwide and applicant provided no
14 country conditions evidence of persecution in home province);
15 In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005)
16 (recognizing that a pattern or practice of persecution is the
17 “systemic or pervasive” persecution of a group).
18 Accordingly, the agency did not err in concluding that
19 Wu failed to establish past persecution or a well-founded
20 fear of future persecution. See 8 U.S.C.
21 §§ 1158(b)(1)(B)(i), (ii), 1231(b)(3)(C); 8 C.F.R.
22 §§ 1208.13(b), 1208.16(b). Those findings are dispositive
7 1 of Wu’s claims for asylum, withholding of removal, and CAT
2 relief. See 8 C.F.R. §§ 1208.13(b), 1208.16(b); Lecaj v.
3 Holder, 616 F.3d 111, 119–20 (2d Cir. 2010).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court