    13-4897
    Zheng v. Lynch
                                                                                BIA
                                                                             Hom, IJ
                                                                        A200 733 708
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
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         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 19th day of April, two thousand sixteen.

    PRESENT:
             JON O. NEWMAN,
             RALPH K. WINTER,
             ROSEMARY S. POOLER,
                  Circuit Judges.
    _____________________________________

    DONGMEI ZHENG,
             Petitioner,

                     v.                                              13-4897
                                                                     NAC
    LORETTA E. LYNCH1, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                    Gary J. Yerman, New York, New
                                       York.


    1
      Loretta E. Lynch is automatically substituted as the
    respondent in this case pursuant to Federal Rule of
    Appellate Procedure 43(c)(2).
FOR RESPONDENT:            Joyce R. Branda, Acting
                           Assistant Attorney General;
                           Anthony W. Norwood, Senior
                           Litigation Counsel; Richard
                           Zanfardino, 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 GRANTED.

    Petitioner Dongmei Zheng, a native and citizen of the

People’s Republic of China, seeks review of a December 4,

2013, decision of the BIA, affirming the December 8, 2011,

decision of an Immigration Judge (“IJ”), denying her

application for asylum, withholding of removal, and relief

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

Dongmei Zheng, No. A200 733 708 (B.I.A. Dec. 4, 2013),

aff’g No. A200 733 708 (Immig. Ct. N.Y. City Dec. 8, 2011).

We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

    We have reviewed the IJ’s decision as modified by the

BIA, i.e., minus the IJ’s decision to pretermit Zheng’s

                             2
application as untimely.    See Xue Hong Yang v. U.S. Dep’t

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

applicable standards of review are well established.    8

U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

510, 513 (2d Cir. 2009).

    The IJ erred in finding that Zheng’s detention and

beating did not amount to past persecution. While the

Immigration and Nationality Act does not provide a

definition of persecution, the BIA has defined persecution

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.”    Matter of Acosta, 19 I. & N. Dec.

211, 222 (B.I.A. 1985), overruled, in part, on other

grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);

accord Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332,

342 (2d Cir. 2006).   Past persecution can be based on harm

other than threats to life or freedom, including “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.   The difference

                               3
between harassment and persecution is “necessarily one of

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

Ivanishvili, 433 F.3d at 341.

    The IJ found Zheng’s detention and beatings by police

insufficient to constitute past persecution because she did

not seek professional medical treatment and because she did

not fully describe her injuries in her asylum application.

We have held that “a ‘minor beating’ or, for that matter,

any physical degradation designed to cause pain,

humiliation, or other suffering, may rise to the level of

persecution if it occurred in the context of an arrest or

detention on the basis of a protected ground.”       Beskovic,

467 F.3d at 226.   Credible evidence of physical abuse at

the hands of government agents may preclude a finding that

the applicant’s mistreatment is mere harassment.

Ivanishvili, 433 F.3d at 342.       We have never held that the

beating of a detained applicant on the basis of a protected

ground does not constitute persecution simply because the

applicant does not seek professional medical treatment.

Moreover, contrary to the IJ’s reasoning, the fact that

Zheng failed to describe her injuries in detail in her

                                4
asylum application does not render her beatings while

detained less serious. On remand,

    We also find error in the agency’s demand for

corroborating evidence.   While the IJ found that Zheng

testified credibly, he nevertheless concluded that she did

not submit sufficient corroborating evidence to carry her

burden of proof. “While consistent, detailed, and credible

testimony may be sufficient to carry the alien’s burden,

evidence corroborating h[er] story, or an explanation for

its absence, may be required where it would reasonably be

expected.”   Diallo v. INS, 232 F.3d 279, 285 (2d Cir.

2000); see also 8 U.S.C. § 1158(b)(1)(B)(ii). Before

denying a claim because of an applicant’s failure to

provide corroborating evidence, the agency must (1) explain

what evidence the applicant should have submitted; (2)

establish that the evidence is reasonably available; (3)

allow the applicant an opportunity to explain the omission

and (4) assess any explanation given.   8 U.S.C. §

1158(b)(1)(B)(ii); Chuilu Liu v. Holder, 575 F.3d 193, 197-

98 (2d Cir. 2009).   We remand for the IJ to do so here.



                              5
    The IJ discounted letters from Zheng’s father and aunt

because they were unsworn, and contained no indicia of

reliability.   There was no error in this decision.     Xiao Ji

Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

2006).   However, the IJ also found that Zheng should have

submitted other evidence to corroborate her arrest and

detention, but did not specify what evidence Zheng should

have submitted.   This was error, as the IJ is required to

specify the evidence the applicant should have submitted

and show that it was reasonably available.   8 U.S.C.

§ 1158(b)(1)(B)(ii); Chuilu Lu, 575 F.3d at 197-98.

    It is unclear both what type of evidence the agency

thought Zheng needed to submit and which portions of the

claim the evidence should have corroborated.   Insofar as

the agency wanted Zheng to obtain evidence of her

mistreatment from sources other than her family, the

Chinese government appears to be the likeliest source.     We

have cautioned against requiring applicants to obtain

corroborating evidence from their alleged persecutors.      Cao

He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 405 (2d Cir.

2005).

                              6
    For the foregoing reasons, the petition for review is

GRANTED and the case is REMANDED for further proceedings

consistent with this order.

                              FOR THE COURT:
                              Catherine O=Hagan Wolfe, Clerk




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