20

- 3862 Wu v. Garland BIA Hom , IJ A 200 235 253 

### 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**  **ELECTR ONIC 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marsha**  **ll United** 2 **States Courthouse, 40 Foley Square, in the City of New York,**  3 **on the 2**  **4 t**  **h da**  **y of A**  **u g**  **u s**  **t ,**  **two thousand twenty** 

**- two** 

**.** 4 5 **PRESENT:** 6 **ROBERT D. SACK,** 7 **RAYMOND J. LOHIER, JR.,** 8 **SUSAN L. CARNEY,** 9 **Circuit Judges.** 10

**_____________________________________** 11 12 **ER LIANG WU ,**  13 **Petitioner ,**  14 15
**v. 20** 

**- 3862**  16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL**  **,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  John S. Yong, Esq. , New York , 23 N Y

. 24 25 **FOR RESPONDENT:** Brian M. Boynton , Assistant 26 Attorney General; Kohsei Ugumori , 27 Senior Litigation Counsel ; Sarah 28 K. Pergolizzi , Trial Attorney, 292 Office of Immigration Litigation , 1 United States Depar tment of 2 Justice, Washington, D C. 3 4 UPON DUE CONSIDERATION of this petition for review of a 5
Board of Immigration Appeals (“BIA”) decision, it is hereby 6
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 7

is DENIED. 8

Petitioner Er Liang W u , a native and citizen of the 9
People’s Republic of China , seeks review of a November 9, 10

2020 , decision of the BIA affirming a n April 16, 2018 , 11
decision of an Immigration Judge (“IJ”) denying asylum, 12
withholding of removal , and relief under the Convention 13
Against Torture (“CAT”). In re Er Liang Wu , No. A 200 235 253 14

(B.I.A. Nov. 9, 2020 ), aff’g No. A 200 235 253 (Immig. Ct. 15
N.Y. City Apr. 16 , 2018 ). We assume the parties’ familiarity 16
with the underlying facts and procedural history. 17

We have reviewed the IJ’s decision as modified by the 18
BIA, i.e., minus the adverse credibility determination that 19

the BIA did not reach. See Xue Hong Yang v. U.S. Dep’t of 20

Justice , 426 F.3d 520, 522 (2d Cir. 2005). The applicable 21

standards of review are well established. See 8 U.S.C. 22

§ 1252(b)(4)(B); Wei Sun v. Sessions , 883 F.3d 23, 27 (2d 23

Cir. 2018). The agency did not err in finding that W u failed 243 to adequately corroborate hi s claim that he suffered past 1
persecution when police detained , beat , and fined him on 2
account of his religious practice

. 3

“ [ P ] ersecution is ‘an extreme concept that does not 4
include every sort of treatment our society regards as 5

offensive.’” Mei Fun Wong v. Holder , 633 F.3d 64, 72 (2d 6
Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t of Justice , 7
416 F.3d 192, 198 (2d Cir. 2005)). “‘[T]he di fference 8
between harassment and persecution is necessarily one of 9
degree,’ . . . assessed with regard to the context in which 10

the mistreatment occurs.” Beskovic v. Gonzales , 467 F.3d 11
223, 226 (2d Cir. 2006) (quoting Ivanishvili v. U.S. Dep’t of 12

Justice , 433 F.3d 332, 341 (2d Cir. 2006)). “The [agency] 13
must, therefore, be keenly sensitive to the fact that a ‘minor 14
beating’ or, for that matter, any physical degradation 15
design ed to cause pain, humiliation, or other suffering, may 16
rise to the level of persecution if it occurred in the context 17
of an arrest or detention on the basis of a protected ground.” 18

Id. 19
“The testimony of the applicant may be sufficient to 20
sustain the app licant’s burden without corroboration, but 21
only if the applicant satisfies the trier of fact that the 224 applicant’s testimony is credible, is persuasive, and refers 1
to specific facts sufficient to demonstrate that the 2
applicant is a refugee.” 8 U.S.C. § 115 8(b)(1)(B)(ii); see 3

also id. § 1231(b)(3)(C); Wei Sun , 883 F.3d at 28. “In 4
determining whether the applicant has met the applicant’s 5
burden, the trier of fact may weigh the credible testimony 6
along with other evidence of record. Where the trier of fact 7

d etermines that the applicant should provide evidence that 8
corroborates otherwise credible testimony, such evidence must 9
be provided unless the applicant does not have the evidence 10
and cannot reasonably obtain the evidence.” 8 U.S.C. 11

§ 1158(b)(1)(B)(ii); s ee also id. § 1231(b)(3)(C). 12

T he agency reasonably required evidence to corroborate 13
Wu’s claim of past persecution because his testimony was not 14
particularly persuasive and did not refer to specific facts 15
showing that his harm rose to the level of persecu tion. See 16

8 U.S.C. § 1158(b)(1)(B)(ii); Wei Sun , 883 F.3d at 28; Mei 17

Fun Wong , 633 F.3d at 72. Indeed, Wu testified that police 18

used their fists and belts to hit him , but he did not testify 19

to details regarding the beating , to specific injuries , or to 20
injuries requir ing medical care. Therefore, although Wu 21

testified that his beating occurred in detention , the record 225 did not reflect specific facts as to the severity of the 1
beating from which the IJ could determine that the harm 2

suffered rose to th e level of persecution. See Mei Fun Wong , 3

633 F.3d at 72; cf. Jian Qiu Liu v. Holder , 632 F.3d 820, 822 4
(2d Cir. 2011) (finding no error in agency’s determination 5
that an alien failed to establish past persecution when “prior 6
to his arrest and detention by local police, he suffered only 7
minor bruising from an altercation with family plann ing 8
officials, which required no formal medical attention and had 9
no lasting physical effect”). The agency reasonably declined 10

to credit letters from Wu’s father and fellow church member 11
in China because they were unsworn, see Y.C. v. Holder , 741 12

F.3d 324 , 332, 334 (2d Cir. 2013); regardless, those letters 13

did not corroborate Wu’s claim that he suffered harm that 14

rose to the level of persecution. O ther than through his 15

father’s unsworn letter , Wu did not corroborate his assertion 16
that his parents paid a f ine to secure his release from 17

detention

. Contrary to Wu’s contention, such evidence was 18
reasonably available given his submission of un sworn letters 19

from individuals who could have submitted sworn affidavits or 20
testified telephonically and his testimony that his parents 21
had received a receipt for the fine payment

. See 8 U.S.C. 226 § 1252(b)(4) (“ No court shall reverse a determination made by 1
a trier of fact with respect to the availability of 2
corroborating evidence

. . . unless

. . . a reasonable trier 3
of fact is compelled to conclude that such corroborating 4

evidence is unavailable. ”). 5
Absent past persecution, a noncitizen may establish 6
eligibility for asylum by demonstrating a well

- founded fear 7
of future persecution. 8 C.F.R. § 120 8.13(b)(2); Hongsheng 8
Leng v. Mukasey , 528 F.3d 135, 142 (2d Cir. 2008). To do so, 9
an applicant must show either “ a reasonable possibility he

. 10

. . would be singled out individually for persecution ” or 11
that the country of removal has a “ pattern or practic e ” of 12
persecuting “ similarly situated ” individuals. 8 C.F.R. 13

§ 1208.13(b)(2)(iii); Hongsheng Leng , 528 F.3d at 142

– 43

. 14
The agency did not err in finding that Wu had not shown 15
a reasonable possibility that Chinese officials would single 16

him out based on his religious practice because he did not 17
allege that officials continued to express an interest in him 18
or look for him based on his 2010 detention for religious 19
practice and hi s father’s letter, which warranted little 20
weight, gave no factual basis for its allegation that 21

authorities continued to look for Wu

. See Jian Xing Huang 227 v. U.S. INS , 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence 1
of solid support in the record . . . [ an applicant’s] fear is 2
speculative at best

. ”). The agency also did not err in 3
determining that W u failed to establish a pattern or practice 4
of persecution of similarly situated individuals because, 5
despite evidence that Chinese officials restrict religio us 6
activities and harass and persecute practitioners in some 7

areas of China , in other areas, Catholics practice their 8
religion without government interference

. S ee 8 C.F.R. 9

§ 1208.13(b)(2)(ii) , (iii) ; see also Jian Liang v. Garland , 10

10 F.4th 106, 117 (2d Cir. 2021) (concluding that pattern or 11
practice claim fails when persecution of religious 12
practitioners is not nationwide and applicant provided no 13
country conditions evidence of persecution in home province ) ; 14

In re A

- M

- , 23 I. & N. Dec. 737, 741 (B.I. A. 2005) 15
(recognizing that a pattern or practice of persecution is the 16
“systemic or pervasive” persecution of a group). 17
Accordingly, the agency did not err in concluding that 18

W u failed to establish past persecution or a well

- founded 19

fear of future persecution. See 8 U.S.C. 20

§§ 1158(b)(1)(B)(i), (ii), 1231(b)(3)(C); 8 C.F.R. 21

§§ 1208.13(b), 1208.16(b). Those findings a re dispositive 228 of Wu’s claims for asylum, withholding of removal, and CAT 1

relief. See 8 C.F.R. §§ 1208.13(b), 1208.16(b); Leca j v. 2

Holder , 616 F.3d 111, 119

– 20 (2d Cir. 2010)

. 3
For the foregoing reasons, the petition for review is 4

DENIED . All pending motions and applications are DENIED and 5

stays VACATED. 6

FOR THE COURT: 7 Catherine O ’ Hagan Wolfe , 8 Clerk of Court 9