13-2031
Wang v. Holder
BIA
Poczter, IJ
A200 917 731
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,
4 on the 25th day of August, two thousand fourteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 JUEMING WANG,
14 Petitioner,
15
16 v. 13-2031
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: David A. Bredin, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Christopher C.
27 Fuller, Deputy Chief, National
28 Security Unit; Edward J. Duffy,
29 Senior Litigation Counsel, Office of
30 Immigration Litigation, United States
31 Department of Justice, Washington,
32 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Jueming Wang, a native and citizen of China,
6 seeks review of a May 2, 2013 order of the BIA, affirming
7 the April 20, 2011 decision of an Immigration Judge (“IJ”),
8 which denied asylum, withholding of removal, and relief
9 under the Convention Against Torture (“CAT”). In re Jueming
10 Wang, No. A200 917 731 (B.I.A. May 2, 2013), aff’g No. A200
11 917 731 (Immig. Ct. New York City Apr. 20, 2011). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we review the
15 decisions of both the IJ and the BIA “for the sake of
16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
17 2008). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
19 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 Contrary to Wang’s assertions, the agency did not err
21 in finding that he failed to establish past persecution.
22 See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342
23 (2d Cir. 2006). The BIA has defined persecution as a
2
1 “threat to the life or freedom of, or the infliction of
2 suffering or harm upon, those who differ in a way regarded
3 as offensive.” Matter of Acosta, 19 I. & N. Dec. 211, 222
4 (B.I.A. 1985), overruled, in part, on other grounds, INS v.
5 Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili,
6 433 F.3d at 342. A past persecution finding can be based on
7 harm other than threats to life or freedom, including
8 non-life-threatening violence and physical abuse, Beskovic
9 v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006), but the
10 harm must be sufficiently severe to rise above “mere
11 harassment,” Ivanishvili, 433 F.3d at 341. The difference
12 between harassment and persecution is “necessarily one of
13 degree that must be decided on a case-by-case basis.”
14 Ivanishvili, 433 F.3d at 341. Here, the agency reasonably
15 determined that Wang’s two interrogations in China did not
16 rise to the level of persecution because he suffered no
17 physical harm and was not threatened with violence. See id.
18 The agency also did not err in finding that Wang failed
19 to demonstrate a well-founded fear of future persecution.
20 See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
21 (absent “solid support in the record,” a fear of persecution
22 is “speculative at best”). Although Wang takes issue with
3
1 the agency’s determination that there had been no escalation
2 in the government’s interest in him, the agency’s inference
3 was reasonably based on Wang’s testimony that the two
4 interrogations were similar, the second was not more severe
5 than the first, and he was never harmed or threatened with
6 physical violence. Where, as here, the agency’s inference
7 “is tethered to the evidentiary record, we will accord
8 deference to the finding.” Siewe v. Gonzalez, 480 F.3d 160,
9 168-69 (2d Cir. 2007) (finding that “support for a contrary
10 inference—even one more plausible or more natural—does not
11 suggest error”).
12 Similarly, the agency did not err in denying Wang’s
13 application for CAT relief. See Mu-Xing Wang v. Ashcroft,
14 320 F.3d 130, 143-44 (2d Cir. 2003) (denying CAT relief for
15 failure to establish that “someone in [applicant’s]
16 particular alleged circumstances is more likely than not to
17 be tortured”). While Wang contends that the agency failed
18 to consider his country conditions evidence in detail, he
19 does not identify any specific pieces of evidence that the
20 agency purportedly overlooked. See Xiao Ji Chen v. U.S.
21 Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)
22 (presuming that the agency “has taken into account all of
4
1 the evidence before [it], unless the record compellingly
2 suggests otherwise”); Zhi Yun Gao v. Mukasey, 508 F.3d 86,
3 87 (2d Cir. 2007) (noting that the agency is not required to
4 expressly “parse or refute on the record each individual
5 argument or piece of evidence offered by the petitioner”).
6 Moreover, because Wang’s claims for asylum and CAT relief
7 shared the same factual predicate, the agency reasonably
8 determined that the same testimony and evidence that Wang
9 offered in support of asylum was also insufficient to
10 demonstrate his eligibility for CAT relief. See Paul v.
11 Gonzales, 444 F.3d 148, 155-57 (2d Cir. 2006) (recognizing
12 that withholding of removal and CAT claims may necessarily
13 fail if the applicant is unable to show the objective
14 likelihood of persecution needed to make out an asylum claim
15 and the factual predicate for all claims is the same).
16 Lastly, we decline Wang’s invitation to remand his case
17 for consideration of new evidence because our review is
18 limited to the administrative record upon which his removal
19 order is based. See 8 U.S.C. § 1252(b)(4)(A).
20 For the foregoing reasons, the petition for review is
21 DENIED.
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
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