20-3258

Wu v. Garland

BIA

Wright, IJ

A205 625 717

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 

New York, on the 23rd 4 day of February, two thousand twenty5 two.

6

7 PRESENT:

8 DENNIS JACOBS,

9 RAYMOND J. LOHIER, JR.,

10 JOSEPH F. BIANCO,

11 Circuit Judges.

12 _____________________________________

13

14 SHICHAI WU,

15 Petitioner,

16

17 v. 20-3258

18 NAC

19 MERRICK B. GARLAND, UNITED 

20 STATES ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Keith S. Barnett, Esq., New York, 

25 NY.

26 

27 FOR RESPONDENT: Brian Boynton, Acting Assistant

28 Attorney General; Anthony P. 

29 Nicastro, Assistant Director; 
2

1 Jenny C. Lee, Trial Attorney, 

2 Office of Immigration Litigation,

3 United States Department of 

4 Justice, Washington, DC.

5

6 UPON DUE CONSIDERATION of this petition for review of a 

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

8 ORDERED, ADJUDGED, AND DECREED that the petition for review 

9 is DENIED.

10 Petitioner Shichai Wu, a native and citizen of the 

11 People’s Republic of China, seeks review of an August 31, 

12 2020 decision of the BIA, which affirmed a September 27, 2018

13 decision of an Immigration Judge (“IJ”) denying asylum and 

14 withholding of removal. In re Shichai Wu, No. A205 625 717 

15 (B.I.A. Aug. 31, 2020), aff’g No. A205 625 717 (Immigr. Ct. 

16 N.Y.C. Sept. 27, 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. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 

20 522 (2d Cir. 2005). The standards of review are well 

21 established. See 8 U.S.C. § 1252(b)(4)(B); Hongsheng Leng 

22 v. Mukasey, 528 F.3d 135, 141 (2d Cir. 2008). 

23 Because the BIA did not reach the IJ’s adverse 

24 credibility determination, that finding is not before us. 

25 See Xue Hong Yang, 426 F.3d at 522; see also Lin Zhong v. 
3

1 U.S. Dep’t of Just., 480 F.3d 104, 122 (2d Cir. 2007) (“[W]e 

2 may consider only those issues that formed the basis for [the 

3 BIA’s] decision.”). Wu does not challenge the agency’s 

4 determination that, assuming credibility, he failed to 

5 establish a well-founded fear of persecution on account of 

6 his religion. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 

7 541 n.1, 545 n.7 (2d Cir. 2005) (stating that petitioner 

8 abandons issues and claims not raised in his brief). That 

9 finding was dispositive of asylum and withholding of removal

10 and thus Wu’s failure to challenge it is fatal to his petition 

11 and we need not reach the agency’s alternative finding that 

12 his asylum application was untimely. See id.; see also Lecaj 

13 v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010) (failure to 

14 show fear of persecution required for asylum “necessarily” 

15 precludes meeting higher burden for withholding of removal); 

16 INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule 

17 courts and agencies are not required to make findings on 

18 issues the decision of which is unnecessary to the results 

19 they reach.”). 
4

1 For the foregoing reasons, the petition for review is 

2 DENIED. All pending motions and applications are DENIED and 

3 stays VACATED.

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe,

6 Clerk of Court