19-398

Zhao v. Wilkinson

BIA

Christensen, IJ

A208 617 791

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.

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 4th day of February, two thousand twenty-one.

PRESENT:

ROSEMARY S. POOLER,

RICHARD J. SULLIVAN,

STEVEN J. MENASHI,

Circuit Judges.

_____________________________________

SHOULONG ZHAO,

Petitioner,

v. 19-398

NAC

ROBERT M. WILKINSON, ACTING 

UNITED STATES ATTORNEY GENERAL,

Respondent.1

_____________________________________

FOR PETITIONER: Gerald Karikari, Karikari & 

Associates, P.C., New York, NY.

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

Acting Attorney General Robert M. Wilkinson is automatically 

substituted for former Acting Attorney General Jeffrey A. Rosen

as Respondent.
2

FOR RESPONDENT: Linda S. Wernery, Assistant 

Director; William C. Minick, 

Attorney, Office of Immigration 

Litigation, United States 

Department of Justice, Washington, 

DC.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, 

AND DECREED that this petition for review of a decision of 

the Board of Immigration Appeals (“BIA”) is DENIED.

Petitioner Shoulong Zhao, a native and citizen of the 

People’s Republic of China, seeks review of a January 30,

2019, decision of the BIA affirming a December 12, 2017, 

decision of an Immigration Judge (“IJ”) denying his

application for asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”). In re Shoulong 

Zhao, No. A208 617 791 (B.I.A. Jan. 30, 2019), aff’g No. A208

617 791 (Immig. Ct. N.Y. City Dec. 12, 2017). We assume the 

parties’ familiarity with the underlying facts and procedural 

history.

Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA. Yan Chen v. 

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). “We review the 

BIA's legal conclusions de novo, and its factual findings . 

. . under the substantial evidence standard.” Y.C. v. 
3

Holder, 741 F.3d 324, 332 (2d Cir. 2013) (internal quotation 

marks omitted); see also 8 U.S.C. § 1252(b)(4)(B).

I. Past Persecution

While the Immigration and Nationality Act does not define 

persecution, the BIA has defined it as “a threat to the life 

or freedom of, or the infliction of suffering or harm upon, 

those who differ in a way regarded as offensive.” Baba v. 

Holder, 569 F.3d 79, 85 (2d Cir. 2009) (internal quotation 

marks omitted); Matter of Acosta, 19 I. & N. Dec. 211, 222 

(BIA 1985), overruled in part on other grounds by INS v. 

Cardoza-Fonseca, 480 U.S. 421 (1987). Past persecution can 

be based on harm other than threats to life or freedom, 

“includ[ing] non-life-threatening violence and physical 

abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 

2006), but the harm must be sufficiently severe to rise above 

“mere harassment,” Ivanishvili, 433 F.3d at 341; see also Mei 

Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) 

(“[P]ersecution is an extreme concept that does not include 

every sort of treatment our society regards as offensive.” 

(internal quotation marks omitted)). “[T]he difference 

between harassment and persecution is necessarily one of 

degree that must be decided on a case-by-case basis.” 
4

Ivanishvili, 433 F.3d at 341.

The agency did not err by determining that Zhao’s past 

harm did not rise to the level of persecution. Zhao testified 

that police beat his back with a baton, but that the pain was 

not bad and that he did not seek medical treatment afterwards.

Zhao also testified that he disarmed one of the officers and 

used a police baton to beat both of them, fracturing one 

officer’s arm and incapacitating the other. Based on this 

testimony, the agency reasonably determined that Zhao’s harm 

did not rise to the level of persecution because he (1) was 

not seriously injured, and (2) did not seek medical treatment. 

See Jian Qiu Liu v. Holder, 632 F.3d 820, 821–22 (2d Cir. 

2011) (upholding agency’s determination that applicant’s past 

harm — being slapped in the face, punched repeatedly, and 

subsequently detained for two days — did not rise to the level 

of persecution).

Zhao’s reliance on Beskovic for the proposition that even 

a minor beating can rise to the level of persecution is 

misplaced. In Beskovic, we held that “[t]he BIA must . . . 

be keenly sensitive to the fact that a ‘minor beating’ or, 

for that matter, any physical degradation designed to cause 

pain, humiliation, or other suffering, may rise to the level 
5

of persecution if it occurred in the context of an arrest or 

detention on the basis of a protected ground.” 467 F.3d at 

226 (emphasis added). But Zhao was not arrested or detained 

when the police hit him on the back, and the agency considered

the context of his beating. See id. In any event, 

regardless of whether harm is inflicted upon an individual 

engaged in a protected act, an applicant has the burden to 

show that the harm was sufficiently severe. See 8 U.S.C. 

§ 1158(b)(1)(B); Ivanishvili, 433 F.3d at 341. Here, the 

level of harm is less severe than that in Jian Qiu Liu, where 

the applicant was “punched . . . repeatedly in the face, 

chest, and back” by several family planning officials before 

being detained for two days. 632 F.3d at 821.

II. Future Persecution

Absent past persecution, a noncitizen may establish 

eligibility for asylum by demonstrating a well-founded fear 

of future persecution. See 8 C.F.R. § 1208.13(b)(2); 

Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). 

To do so, an applicant must show either a reasonable 

possibility that he will be singled out for persecution or 

that the country of removal has a pattern or practice of 

persecuting similarly situated individuals. See 8 C.F.R. 
6

§ 1208.13(b)(2)(iii); In re A-M-, 23 I. & N. Dec. 737, 741 

(BIA 2005) (explaining that a pattern or practice of 

persecution involves the “systemic or pervasive” persecution 

of a group). “In the absence of solid support in the record,” 

a fear of persecution is not well founded and “is speculative 

at best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d 

Cir. 2005). Zhao does not challenge the agency’s finding 

that he will be singled out for assaulting two police officers 

rather than for practicing his religion; therefore, he has 

waived review of that determination. See Norton v. Sam’s 

Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not 

sufficiently argued in the briefs are considered waived and 

normally will not be addressed on appeal.”).

The agency reasonably concluded that Zhao did not show a 

pattern or practice of persecution of Christians. In support 

of this argument, Zhao relied solely on the State Department’s 

2017 International Religious Freedom Report (the “IRF 

Report”), arguing that it showed that the Chinese government 

considers Christianity to be an evil cult. However, the IRF 

Report was more nuanced, stating that the Chinese government 

considers 13 specific Christian groups to be evil cults. But 

Zhao does not allege that he belongs to one of those groups.
7

On appeal, Zhao also argues that an updated 2018 

Religious Freedom Report shows that China has a pattern of 

detaining, torturing, and harassing Christians. But that 

report, which was released in June 2019, was not before the 

agency at the time of the BIA’s January 2019 decision. See 

8 U.S.C. § 1252(b)(4)(A) (limiting judicial review to “the 

administrative record on which the order of removal is 

based”). Zhao could have moved to reopen in the BIA for 

consideration of that report. See 8 C.F.R. § 1003.2(c) 

(providing for motions to reopen for consideration of new 

evidence before the BIA); Xiao Xing Ni v. Gonzales, 494 F.3d 

260, 262 (2d Cir. 2007) (“[W]e should not exercise [any 

inherent power to remand] if: [i] the basis for the remand is 

an instruction to consider documentary evidence that was not 

in the record before the BIA; and [ii] the agency regulations 

set forth procedures to reopen a case before the BIA for the 

taking of additional evidence.”). In any event, that report 

does not identify widespread persecution of Christians in 

Fujian Province, Zhao’s home region. Thus, even if we had 

inherent authority to remand, Zhao has not identified 

“sufficiently compelling circumstances” to do so on the basis 

of this report. Xiao Xing Ni, 494 F.3d at 267 (internal 
8

quotation marks omitted). 

Likewise, the 2017 IRF Report before the BIA did not 

identify government action against Christians in Fujian 

Province, other than the 20-day detention of a Catholic 

bishop. Further, the 2017 IRF Report suggested that millions

of Protestants practice in unregistered churches in China. 

It also explained that authorities in some areas allow 

unregistered churches to hold services, although authorities 

in other areas target such churches for abuse. Given the 

large number of Christians practicing in unregistered 

churches, the fact that restrictions on their activities vary 

by region, and the lack of evidence that Christians in Fujian 

Province face heightened restrictions, the agency did not err 

in determining that Zhao did not establish a pattern or 

practice of persecution of similarly situated Christians. 

See 8 C.F.R. § 1208.13(b)(2)(iii); Santoso v. Holder, 580 

F.3d 110, 112 & n.1 (2d Cir. 2009) (upholding denial of 

pattern or practice claim where evidence reflected that 

violence was not nationwide and that Catholics in many parts 

of Indonesia were free to practice their faith); Jian Hui 

Shao v. Mukasey, 546 F.3d 138, 149, 169–70 (2d Cir. 2008) 

(finding no error in requiring locality-specific evidence 
9

where the record reflects that conditions vary by region).

III. Torture

Zhao’s argument that he is more likely than not to be 

tortured if he returns to China given his past encounter with 

the police and China’s pattern and practice of persecuting 

Christians is likewise unavailing. As explained above, the 

agency did not err in rejecting Zhao’s pattern or practice 

claim. Further, even if he is imprisoned in China based on 

his past encounter with the police, he has not submitted 

particularized evidence as needed to meet his burden of 

showing that he is more likely than not to be tortured in 

prison. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 

156, 160 (2d Cir. 2005) (concluding that “particularized 

evidence” beyond State Department reports is necessary to 

establish eligibility for CAT protection for applicant 

alleging she would be tortured for leaving China illegally); 

Jian Xing Huang, 421 F.3d at 129 (“In the absence of solid 

support in the record . . . , [an applicant’s] fear is 

speculative at best.”); Mu-Xing Wang v. Ashcroft, 320 F.3d 

130, 144 (2d Cir. 2003) (an applicant for CAT relief must 

show a likelihood of torture in “his particular alleged 

circumstances” as a military deserter). Specifically, on 
10

appeal to the BIA and in his brief in this Court, Zhao did 

not identify any evidence that someone in his particular 

circumstances is likely to be tortured in prison. 

At Zhao’s request, the IJ took administrative notice of 

the State Department’s 2016 Human Rights Report for China, 

which states that former prisoners have reported being 

tortured in China and notes that torture is a “systemic” 

problem. But the report does not state that prisoners 

arrested for attacking the police are targeted for torture. 

Thus, the IJ reasonably concluded that this report did not 

show a likelihood of torture for someone in Zhao’s particular

circumstances. See Mu Xiang Lin, 432 F.3d at 160; Mu-Xing 

Wang, 320 F.3d at 144. And the administrative record does 

not contain any other evidence to support Zhao’s claim.

For the foregoing reasons, the petition for review is 

DENIED. All pending motions and applications are DENIED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court