15-344 

Sai v. Sessions 

BIA 

Sichel, IJ 

A089 252 017 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

AMENDED 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.

At a stated term of the United States Court of Appeals for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

16th day of February, two thousand seventeen. 

PRESENT: 

REENA RAGGI,

DENNY CHIN, 

RAYMOND J. LOHIER, JR.,

Circuit Judges. 

_____________________________________ 

YANAN SAI, 

 Petitioner, 

v. 15-344 

 NAC 

JEFF SESSIONS, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent.

_____________________________________ 

FOR PETITIONER: Gary J. Yerman, Esq., New York, N.Y. 

 



 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), 

Attorney General Sessions is automatically substituted for 

former Attorney General Loretta E. Lynch as Respondent. 
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FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General; Terri J. 

Scadron, Assistant Director; Aaron 

D. Nelson, Trial Attorney, Office of 

Immigration Litigation, United 

States Department of Justice, 

Washington, D.C. 

UPON DUE CONSIDERATION of this petition for review of a Board 

of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, 

ADJUDGED, AND DECREED that the petition for review is DENIED. 

Petitioner Yanan Sai, a native and citizen of China, seeks 

review of a decision of the BIA, affirming a decision of an 

Immigration Judge (“IJ”) denying Sai’s application for asylum, 

withholding of removal, and relief under the Convention Against 

Torture (“CAT”). In re Yanan Sai, No. A089 252 017 (B.I.A. Jan. 

8, 2015), aff’g No. A089 252 017 (Immig. Ct. N.Y.C. Mar. 14, 

2013). We assume the parties’ familiarity with the underlying 

facts and procedural history in this case. 

 Under the circumstances of this case, we have reviewed both 

the IJ’s and the BIA’s opinions “for the sake of completeness,” 

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 

2006), under established standards of review, see 8 U.S.C. 

§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 

Cir. 2009). 
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I. Past Persecution 

 Sai argues that the agency, in finding no past persecution, 

ignored his testimony that he was beaten multiple times while 

detained and, therefore, failed to consider his past harm 

cumulatively. We need not decide this issue, however, because 

substantial evidence, including Sai’s own testimony, supports 

the agency’s determination that Sai was not harmed on account 

of actual or imputed political opinion, but, rather, as 

retribution for discarding his employer’s fruit, refusing to 

pay for the loss, and complaining to a commercial board. 

 As a result, remand as to Sai’s claim of past persecution 

would be futile because, absent any errors made, the agency 

would have reached the same decision. See Xiao Ji Chen v. U.S. 

Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006). The 

petition for review is therefore denied as to this claim.

II. Fear of Future Persecution 

 An applicant who has not established past persecution is 

not entitled to a presumption of fear of future persecution and, 

thus, must establish both that he subjectively fears such 

persecution and that this fear is objectively reasonable. See

8 C.F.R. § 1208.13(b)(1); Ramsameachire v. Ashcroft, 357 F.3d 

169, 178 (2d Cir. 2004). To carry this burden, the applicant 
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must “make some showing that authorities in his country of 

nationality are either aware of his activities or likely to 

become aware of his activities.” Hongsheng Leng v. Mukasey, 

528 F.3d 135, 143 (2d Cir. 2008). Sai argues that, after 

leaving China, he made several blog posts critical of the 

Chinese government, that other online critics of the government 

have been persecuted, and that letters from his wife indicate 

that the police have come to his home in China to threaten him 

for his criticism. 

 The BIA, however, concluded that Sai had not established 

a well-founded fear of future persecution because he had not 

shown that he was engaged in the type of journalism the Chinese 

government was likely to target, particularly as he had not 

provided credible evidence that the government was aware of what 

he had written. In so concluding, the BIA effectively relied 

on the IJ’s adverse credibility finding as to Sai’s wife’s 

letters, which referenced dates inconsistent with Sai’s 

testimony regarding when police had come to his home. The 

agency may base an adverse credibility determination on 

statement inconsistencies “without regard to whether” those 

inconsistencies go “to the heart of the applicant’s claim.” 8 

U.S.C. § 1158(b)(1)(B)(iii). Because it is not “plain that no 
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reasonable fact-finder could make such an adverse credibility 

ruling” here, Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 

2008), we defer to the agency on this finding. Thus, even if 

there were any error in the BIA’s failure formally to adopt the 

IJ’s credibility findings, no remand would be warranted because 

there is no realistic possibility that, absent that error, the 

agency would have reached a different conclusion as to feared 

future persecution. See Alam v. Gonzales, 438 F.3d 184, 187–

88 (2d Cir. 2006). 

 For the same reasons, the record does not compel a 

conclusion that Sai showed that it was more likely than not that 

he would be tortured if he returned to China. See Khouzam v. 

Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004). Accordingly, we 

affirm the agency’s denial of Sai’s CAT claim. 

III. Conclusion 

 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. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court