Wu v. Garland ( 2022 )

20-3258
Wu v. Garland
BIA
Wright, IJ
A205 625 717
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 23rd day of February, two thousand twenty-
5 two.
6
7 PRESENT:
8 DENNIS JACOBS,
9 RAYMOND J. LOHIER, JR.,
10 JOSEPH F. BIANCO,
11 Circuit Judges.
12 _____________________________________
13
14 SHICHAI WU,
15 Petitioner,
16
17 v. 20-3258
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Keith S. Barnett, Esq., New York,
25 NY.
26
27 FOR RESPONDENT: Brian Boynton, Acting Assistant
28 Attorney General; Anthony P.
29 Nicastro, Assistant Director;
1 Jenny C. Lee, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of
4 Justice, Washington, DC.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Shichai Wu, a native and citizen of the
11 People’s Republic of China, seeks review of an August 31,
12 2020 decision of the BIA, which affirmed a September 27, 2018
13 decision of an Immigration Judge (“IJ”) denying asylum and
14 withholding of removal. In re Shichai Wu, No. A205 625 717
15 (B.I.A. Aug. 31, 2020), aff’g No. A205 625 717 (Immigr. Ct.
16 N.Y.C. Sept. 27, 2018). We assume the parties’ familiarity
17 with the underlying facts and procedural history.
18 We have reviewed the IJ’s decision as modified by the
19 BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520,
20 522 (2d Cir. 2005). The standards of review are well
21 established. See 8 U.S.C. § 1252(b)(4)(B); Hongsheng Leng
22 v. Mukasey, 528 F.3d 135, 141 (2d Cir. 2008).
23 Because the BIA did not reach the IJ’s adverse
24 credibility determination, that finding is not before us.
25 See Xue Hong Yang, 426 F.3d at 522; see also Lin Zhong v.
2
1 U.S. Dep’t of Just., 480 F.3d 104, 122 (2d Cir. 2007) (“[W]e
2 may consider only those issues that formed the basis for [the
3 BIA’s] decision.”). Wu does not challenge the agency’s
4 determination that, assuming credibility, he failed to
5 establish a well-founded fear of persecution on account of
6 his religion. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
7 541 n.1, 545 n.7 (2d Cir. 2005) (stating that petitioner
8 abandons issues and claims not raised in his brief). That
9 finding was dispositive of asylum and withholding of removal
10 and thus Wu’s failure to challenge it is fatal to his petition
11 and we need not reach the agency’s alternative finding that
12 his asylum application was untimely. See id.; see also Lecaj
13 v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010) (failure to
14 show fear of persecution required for asylum “necessarily”
15 precludes meeting higher burden for withholding of removal);
16 INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule
17 courts and agencies are not required to make findings on
18 issues the decision of which is unnecessary to the results
19 they reach.”).
3
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
4