17-3226 Huang v. Barr BIA Tsankov, IJ A098 469 134 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 30th day of May, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 HAIFAN HUANG, 14 Petitioner, 15 16 v. 17-3226 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Yok-seung Chiu, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Anthony C. 27 Payne, Assistant Director; Liza S. 28 Murcia, Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 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 Haifan Huang, a native and citizen of the
6 People’s Republic of China, seeks review of a September 15,
7 2017, decision of the BIA affirming an April 28, 2017,
8 decision of an Immigration Judge (“IJ”) denying Huang’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Haifan
11 Huang, No. A 098 469 134 (B.I.A. Sept. 15, 2017), aff’g No.
12 A 098 469 134 (Immig. Ct. N.Y. City Apr. 28, 2017). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 We have reviewed the decision of the IJ as supplemented
16 and modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of
17 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
18 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Because Huang
19 does not challenge the agency’s conclusion that she is
20 ineligible for asylum because she committed a particularly
21 serious crime, we consider only her eligibility for
22 withholding of removal and CAT relief. See Yueqing Zhang v.
23 Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005). The 2 1 applicable standards of review are well established. See
2 8 U.S.C. § 1252(b)(4)(B); Wei Sun v. Sessions, 883 F.3d 23,
3 27 (2d Cir. 2018) (reviewing factual findings for substantial
4 evidence and questions of law and the application of law to
5 undisputed facts de novo).
6 To qualify for withholding of removal, an applicant must
7 establish that her “life or freedom would be threatened” in
8 the country of removal on the basis of one of five statutory
9 grounds: “race, religion, nationality, membership in a
10 particular social group, or political opinion.” 8 U.S.C.
11 § 1231(b)(3)(A); see 8 C.F.R. § 1208.16(b); Ramsameachire v.
12 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). Because Huang
13 was not persecuted in the past, she had to establish “that it
14 is more likely than not” that she “would be persecuted.” 8
15 C.F.R. § 1208.16(b)(2). To establish eligibility based on
16 future persecution, an applicant must show that her fear is
17 objectively reasonable. Ramsameachire, 357 F.3d at 178. To
18 meet this standard, an applicant must demonstrate that she
19 would likely be “singled out individually for persecution,”
20 or that there is a “pattern or practice” of persecution of
21 persons “similarly situated” to her. 8 C.F.R.
22 § 1208.13(b)(2)(iii). An applicant, like Huang, who has
23 requested “relief based exclusively on activities undertaken 3 1 after h[er] arrival in the United States . . . must make some
2 showing that authorities in h[er] country of nationality are
3 (1) aware of h[er] activities or (2) likely to become aware
4 of h[er] activities.” Hongsheng Leng v. Mukasey, 528 F.3d
5 135, 138, 143 (2d Cir. 2008).
6 Similarly, an applicant for CAT relief must show that
7 she is “more likely than not” to be tortured. 8 C.F.R.
8 § 1208.16(c)(2). “Torture is defined as any act by which
9 severe pain or suffering, whether physical or mental, is
10 intentionally inflicted . . . by or at the instigation of or
11 with the consent or acquiescence of a public official or other
12 person acting in an official capacity.” Id. § 1208.18(a)(1).
13 “Torture is an extreme form of cruel and inhuman treatment
14 and does not include lesser forms of cruel, inhuman or
15 degrading treatment or punishment that do not amount to
16 torture.” Id. § 1208.18(a)(2). In assessing the likelihood
17 of torture, “all evidence relevant to the possibility of
18 future torture shall be considered, including, but not
19 limited to . . . [e]vidence of past torture,” the possibility
20 of relocation within the country, “[e]vidence of gross,
21 flagrant or mass violations of human rights . . . and . . .
22 relevant information regarding conditions in the country of
23 removal.” Id. § 1208.16(c)(3). To meet her burden of proof, 4 1 Huang was required to establish that someone in her
2 “particular alleged circumstances” would more likely than not
3 be tortured. Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d
4 Cir. 2003).
5 Huang failed to establish an objectively reasonable fear
6 that she would more likely than not be persecuted or tortured.
7 As the IJ noted, Huang was unable to testify with specificity
8 about who would harm her in China and in what way, she was
9 unaffiliated with any church or religious group in China, and
10 she could not explain how the authorities would become aware
11 of her attendance at underground church gatherings.
12 Moreover, the country conditions reports do not demonstrate
13 a pattern or practice of persecution or torture of the average
14 churchgoer in Huang’s home province of Zhejiang. The most
15 recent reports described closures of churches and arrests of
16 pastors, activists, and journalists, but not persecution or
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17-3226 Huang v. Barr BIA Tsankov, IJ A098 469 134 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 30th day of May, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 HAIFAN HUANG, 14 Petitioner, 15 16 v. 17-3226 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Yok-seung Chiu, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Anthony C. 27 Payne, Assistant Director; Liza S. 28 Murcia, Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 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 Haifan Huang, a native and citizen of the
6 People’s Republic of China, seeks review of a September 15,
7 2017, decision of the BIA affirming an April 28, 2017,
8 decision of an Immigration Judge (“IJ”) denying Huang’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Haifan
11 Huang, No. A 098 469 134 (B.I.A. Sept. 15, 2017), aff’g No.
12 A 098 469 134 (Immig. Ct. N.Y. City Apr. 28, 2017). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 We have reviewed the decision of the IJ as supplemented
16 and modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of
17 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
18 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Because Huang
19 does not challenge the agency’s conclusion that she is
20 ineligible for asylum because she committed a particularly
21 serious crime, we consider only her eligibility for
22 withholding of removal and CAT relief. See Yueqing Zhang v.
23 Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005). The 2 1 applicable standards of review are well established. See
2 8 U.S.C. § 1252(b)(4)(B); Wei Sun v. Sessions, 883 F.3d 23,
3 27 (2d Cir. 2018) (reviewing factual findings for substantial
4 evidence and questions of law and the application of law to
5 undisputed facts de novo).
6 To qualify for withholding of removal, an applicant must
7 establish that her “life or freedom would be threatened” in
8 the country of removal on the basis of one of five statutory
9 grounds: “race, religion, nationality, membership in a
10 particular social group, or political opinion.” 8 U.S.C.
11 § 1231(b)(3)(A); see 8 C.F.R. § 1208.16(b); Ramsameachire v.
12 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). Because Huang
13 was not persecuted in the past, she had to establish “that it
14 is more likely than not” that she “would be persecuted.” 8
15 C.F.R. § 1208.16(b)(2). To establish eligibility based on
16 future persecution, an applicant must show that her fear is
17 objectively reasonable. Ramsameachire, 357 F.3d at 178. To
18 meet this standard, an applicant must demonstrate that she
19 would likely be “singled out individually for persecution,”
20 or that there is a “pattern or practice” of persecution of
21 persons “similarly situated” to her. 8 C.F.R.
22 § 1208.13(b)(2)(iii). An applicant, like Huang, who has
23 requested “relief based exclusively on activities undertaken 3 1 after h[er] arrival in the United States . . . must make some
2 showing that authorities in h[er] country of nationality are
3 (1) aware of h[er] activities or (2) likely to become aware
4 of h[er] activities.” Hongsheng Leng v. Mukasey, 528 F.3d
5 135, 138, 143 (2d Cir. 2008).
6 Similarly, an applicant for CAT relief must show that
7 she is “more likely than not” to be tortured. 8 C.F.R.
8 § 1208.16(c)(2). “Torture is defined as any act by which
9 severe pain or suffering, whether physical or mental, is
10 intentionally inflicted . . . by or at the instigation of or
11 with the consent or acquiescence of a public official or other
12 person acting in an official capacity.” Id. § 1208.18(a)(1).
13 “Torture is an extreme form of cruel and inhuman treatment
14 and does not include lesser forms of cruel, inhuman or
15 degrading treatment or punishment that do not amount to
16 torture.” Id. § 1208.18(a)(2). In assessing the likelihood
17 of torture, “all evidence relevant to the possibility of
18 future torture shall be considered, including, but not
19 limited to . . . [e]vidence of past torture,” the possibility
20 of relocation within the country, “[e]vidence of gross,
21 flagrant or mass violations of human rights . . . and . . .
22 relevant information regarding conditions in the country of
23 removal.” Id. § 1208.16(c)(3). To meet her burden of proof, 4 1 Huang was required to establish that someone in her
2 “particular alleged circumstances” would more likely than not
3 be tortured. Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d
4 Cir. 2003).
5 Huang failed to establish an objectively reasonable fear
6 that she would more likely than not be persecuted or tortured.
7 As the IJ noted, Huang was unable to testify with specificity
8 about who would harm her in China and in what way, she was
9 unaffiliated with any church or religious group in China, and
10 she could not explain how the authorities would become aware
11 of her attendance at underground church gatherings.
12 Moreover, the country conditions reports do not demonstrate
13 a pattern or practice of persecution or torture of the average
14 churchgoer in Huang’s home province of Zhejiang. The most
15 recent reports described closures of churches and arrests of
16 pastors, activists, and journalists, but not persecution or
17 torture of ordinary churchgoers. The reports also recounted
18 harassment and monitoring, but not persecution or torture, of
19 Christians in Zhejiang. See Ivanishvili v. U.S. Dep’t of
20 Justice, 433 F.3d 332, 341 (2d Cir. 2006) (reasoning that
21 treatment must rise above the level of “mere harassment” to
22 constitute persecution). Thus, the reports do not show that
23 someone in Huang’s position who attends an underground church 5 1 is more likely than not to suffer harm rising to the level of
2 persecution or torture, given that the arrests and detentions
3 were of pastors and activists. See Hongsheng Leng, 528 F.3d
4 at 142; Ivanishvili, 433 F.3d at 341.
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DISMISSED as moot. Any pending request for oral argument
10 in this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court