     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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