15-344
Sai v. Sessions
                                                                                    BIA
                                                                                Sichel, IJ
                                                                            A089 252 017

                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                        AMENDED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
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RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING
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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
16th 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



                                      4
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.   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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