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, 

on the 24th 4 day of August, two thousand twenty-two.

5

6 PRESENT:

7 ROBERT D. SACK,

8 RAYMOND J. LOHIER, JR.,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 ER LIANG WU,

14 Petitioner,

15

16 v. 20-3862

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

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, 
2

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 
3

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 
4

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 
5

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. 
6

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 
7

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 
8

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