Sai v. Sessions

15-344
Sai v. Sessions
BIA
Sichel, IJ
A089 252 017
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
15th day of February, two thousand seventeen.
PRESENT:
REENA RAGGI,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
YANAN SAI,
Petitioner,
v. 15-344
NAC
JEFF SESSIONS, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, Esq., New York, N.Y.

Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Sessions is automatically substituted for
former Attorney General Loretta E. Lynch as Respondent.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Terri J.
Scadron, Assistant Director; Aaron
D. Nelson, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Yanan Sai, a native and citizen of China, seeks
review of a decision of the BIA, affirming a decision of an
Immigration Judge (“IJ”) denying Sai’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Yanan Sai, No. A089 252 017 (B.I.A. Jan.
8, 2015), aff’g No. A089 252 017 (Immig. Ct. N.Y.C. Mar. 14,
2013). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and the BIA’s opinions “for the sake of completeness,”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006), under established standards of review, see 8 U.S.C.
§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
Cir. 2009).
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I. Past Persecution
Sai argues that the agency, in finding no past persecution,
ignored his testimony that he was beaten multiple times while
detained and, therefore, failed to consider his past harm
cumulatively. We need not decide this issue, however, because
substantial evidence, including Sai’s own testimony, supports
the agency’s determination that Sai was not harmed on account
of actual or imputed political opinion, but, rather, as
retribution for discarding his employer’s fruit, refusing to
pay for the loss, and complaining to a commercial board.
As a result, remand as to Sai’s claim of past persecution
would be futile because, absent any errors made, the agency
would have reached the same decision. See Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006). The
petition for review is therefore denied as to this claim.
II. Fear of Future Persecution
An applicant who has not established past persecution is
not entitled to a presumption of fear of future persecution and,
thus, must establish both that he subjectively fears such
persecution and that this fear is objectively reasonable. See
8 C.F.R. § 1208.13(b)(1); Ramsameachire v. Ashcroft, 357 F.3d
169, 178 (2d Cir. 2004). To carry this burden, the applicant
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must “make some showing that authorities in his country of
nationality are either aware of his activities or likely to
become aware of his activities.” Hongsheng Leng v. Mukasey,
528 F.3d 135, 143 (2d Cir. 2008). Sai argues that, after
leaving China, he made several blog posts critical of the
Chinese government, that other online critics of the government
have been persecuted, and that letters from his wife indicate
that the police have come to his home in China to threaten him
for his criticism.
The BIA, however, concluded that Sai had not established
a well-founded fear of future persecution because he had not
shown that he was engaged in the type of journalism the Chinese
government was likely to target, particularly as he had not
provided credible evidence that the government was aware of what
he had written. In so concluding, the BIA effectively relied
on the IJ’s adverse credibility finding as to Sai’s wife’s
letters, which referenced dates inconsistent with Sai’s
testimony regarding when police had come to his home. The
agency may base an adverse credibility determination on
statement inconsistencies “without regard to whether” those
inconsistencies go “to the heart of the applicant’s claim.” 8
U.S.C. § 1158(b)(1)(B)(iii). Because it is not “plain that no
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reasonable fact-finder could make such an adverse credibility
ruling” here, Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008), we defer to the agency on this finding. Thus, even if
there were any error in the BIA’s failure formally to adopt the
IJ’s credibility findings, no remand would be warranted because
there is no realistic possibility that, absent that error, the
agency would have reached a different conclusion as to feared
future persecution. See Alam v. Gonzales, 438 F.3d 184, 187–
88 (2d Cir. 2006).
For the same reasons, the record does not compel a
conclusion that Sai showed that it was more likely than not that
he would be tortured if he returned to China. See Khouzam v.
Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004). Accordingly, we
affirm the agency’s denial of Sai’s CAT claim.
III. Conclusion
For the foregoing reasons, the petition for review is
DENIED in part. As we have completed our review, any stay of
removal that the Court previously granted in this petition is
VACATED, and any pending motion for a stay of removal in this
petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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