SUN YI DONG, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 385 F. App'x 33

SUMMARY ORDER Petitioner Sun Yi Dong, a native and citizen of the People’s Republic of China, seeks review of the March 28, 2008 order of the BIA affirming the December 12, 2006 decision of Immigration Judge (“IJ”) Robert Weisel, denying his applications for asylum, withholding of removal under § 241(b)(3) of the Immigration and Nationality Act, and withholding of removal under the Convention Against Torture. See In re Sun Yi Dong, No. [ A XX XXX XXX ] (B.I.A. Mar. 28, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

The BIA found that Dong failed to establish that he was subject to past persecution in China for his Falun Gong practices, when, inter alia, he was arrested and detained for 21 days, during which time he was interrogated and provided bread and water only every three to four days. The BIA also found that Dong failed to establish a well-founded fear of future persecution based on China's pattern and practice of persecuting Falun Gong practitioners. We vacate and remand for further action with respect to both findings.

With respect to Dong's claim of past persecution, the record suggests that the IJ and BIA may have concluded that Dong could establish past persecution only if he was subjected to physical violence. See, e.g., In re Sun Yi Dong, No. [ A XX XXX XXX ] (B.I.A. Mar. 28, 2008) (stating that Dong "was never physically harmed and was never arrested again," and concluding that "the experiences described by the respondent are insufficient to establish past persecution"); In re Sun Yi Dong, No. [ A XX XXX XXX ] (Immig. Ct. N.Y.

City Dec. 12, 2006) ("During his detention there was no evidence of beatings, torture or extended detention with intimidation."); id. ("There was no evidence ... that he was ever physically mistreated subsequent to October 2005."). That would be the wrong legal standard. We have cautioned the BIA to "be keenly sensitive to the fact that any physical degradation designed to cause pain, humiliation, or other suffering, may rise to the level of persecution." Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir.2006).

Because the BIA may have erroneously concluded that the lack of physical violence against Dong foreclosed his asylum claim, we vacate and remand for further consideration. As to Dong's claim of future persecution, he relies on the Chinese government's pattern and practice of persecuting Falun Gong practitioners. We conclude that the agency erred in failing to consider the country condition report that Dong submitted to the IJ. See Yan Chen v. Gonzales, 417 F.3d 268, 272 (2d Cir.2005) (finding "signfficant error" in the BIA's failure to consider a country condition report).

Additionally, to the extent the IJ may have assumed that Dong needed a high level of doctrinal knowledge to be eligible for asylum, that reasoning would also be in error. See Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir.2006). Accordingly, we GRANT the petition for review in part, VACATE the order of the BIA in part, and REMAND to the BIA for further proceedings consistent with this order. . Dong has waived any challenge to the denial of his claim for relief for removal under the Convention Against Torture. .

In light of the REAL ID Act, it is unclear whether or not our Circuit's rule-that an 13 is under no obligation to provide pre..decision notice to the applicant that his/her testimony might require corroboration-remains good law. See 8 U.S.C. § 1158(b)(l)(B)(ii); Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d Cir.2009). As we remand on other grounds, it is unnecessary to decide this question in the first instance here. Nothing in this order prevents Doug from moving to reopen the administrative record on remand to provide corroborative evidence, if he is otherwise able to do