Shen v. Barr
This text of Shen v. Barr (Shen v. Barr) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
17-602 Shen v. Barr BIA Loprest, IJ A098 603 482 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 3rd day of September, two thousand twenty. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROSEMARY S. POOLER, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 XUEHUA SHEN, AKA CHOI SUL MAE, 14 Petitioner, 15 16 v. 17-602 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Xuehua Shen, Pro Se, Flushing, 24 NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Keith I. 28 McManus, Assistant Director; Juria 29 L. Jones, Trial Attorney, Office 30 of Immigration Litigation, United 31 States Department of Justice, 32 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 in part, and DISMISSED in part.
5 Petitioner Xuehua Shen seeks review of a February 15,
6 2017, decision of the BIA affirming a May 23, 2016, decision
7 of an Immigration Judge (“IJ”) denying Shen’s application for
8 asylum, withholding of removal, and relief under the
9 Convention Against Torture (“CAT”). In re Xuehua Shen, No.
10 A 098 603 482 (B.I.A. Feb. 15, 2017), aff’g No. A 098 603 482
11 (Immig. Ct. N.Y. City May 23, 2016). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 in this case.
14 Under the circumstances of this case, we have reviewed
15 both the IJ’s and BIA’s decisions. Wangchuck v. Dep’t of
16 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
17 the agency’s factual findings for substantial evidence and
18 its legal conclusions de novo. Y.C. v. Holder, 741 F.3d 324,
19 332 (2d Cir. 2013).
20 Shen alleged a fear of persecution in China on account
21 of her political activities in the United States,
22 specifically her attendance at demonstrations and two
23 articles she posted on the internet. She had the burden of 2 1 proving a well-founded fear of persecution on account of her
2 political activism, which required her to establish that her
3 fear was objectively reasonable. See 8 U.S.C. §§
4 1101(a)(42), 1158(b)(1)(B)(i); Ramsameachire v. Ashcroft, 357
5 F.3d 169, 178 (2d Cir. 2004); see also Jian Xing Huang v.
6 U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence
7 of solid support in the record,” an asylum applicant’s fear
8 of persecution is “speculative at best.”). Shen could meet
9 her burden by establishing either “a reasonable possibility
10 . . . she would be singled out individually for persecution”
11 or “a pattern or practice . . . of persecution of a group of
12 persons similarly situated to [her] on account of . . .
13 political opinion.” 8 C.F.R. § 1208.13(b)(2)(iii); see also
14 Y.C., 741 F.3d at 332. Because Shen’s claim was based solely
15 on her activities in the United States, she had to show a
16 “reasonable possibility” that Chinese authorities were aware
17 or likely to become aware of her political activities.
18 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).
19 We find no error in the agency’s determination that Shen
20 failed to meet her burden.
21 The agency reasonably declined to credit Shen’s testimony
22 about a phone call her mother allegedly received from a
23 Chinese official warning Shen to “be quiet.” First, Shen had 3 1 no first-hand knowledge about the warning, and her mother was
2 an interested witness not subject to cross-examination. See
3 Y.C., 741 F.3d at 334 (upholding agency’s determination to
4 give “very little evidentiary weight” to unsworn letter from
5 petitioner’s husband). Second, Shen testified that her
6 mother sent her a letter containing this information, but she
7 did not produce the letter. See Chuilu Liu v. Holder, 575
8 F.3d 193, 198 n.6 (2d Cir. 2009) (“[A] failure to corroborate
9 can suffice, without more, to support a finding that an alien
10 has not met h[er] burden of proof.”).
11 Absent this warning, Shen’s only evidence of the
12 government’s awareness was her speculation that Chinese
13 authorities must be aware of her activities because they were
14 public. That speculation is insufficient to satisfy her
15 burden of proof. See Y.C., 741 F.3d at 333–34, 336–37
16 (explaining that published internet article and photographs
17 documenting petitioner’s participation in protests were
18 insufficient evidence of awareness, even where there was
19 evidence that the Chinese government monitors online
20 postings); see also Jian Xing Huang, 421 F.3d at 129. Nor
21 did the agency err in concluding that Shen failed to show a
22 pattern or practice of persecution of similarly situated pro-
23 democracy activists: Shen testified that she was a low-level 4 1 member of a pro-democracy organization in the United States,
2 and her country conditions evidence established only that the
3 Chinese government has detained and imprisoned high-profile
4 political dissidents whose political activism occurred
5 principally in China. In sum, there was nothing in the record
6 that established that low-level activists in the United
7 States, like Shen, face persecution in China. See Y.C., 741
8 F.3d at 334–35 (holding that persecution of high-profile
9 activist who headed two organizations was not evidence that
10 an individual who participated in demonstrations in United
11 States and published a single article would be persecuted).
12 Because Shen did not demonstrate that she has an
13 objectively reasonable well-founded fear of persecution, her
14 asylum claim fails. Ramsameachire, 357 F.3d at 178. Shen
15 was thus also unable to meet the higher standard required to
16 succeed on a claim for withholding of removal. See Lecaj v.
17 Holder, 616 F.3d 111, 119 (2d Cir. 2010). We dismiss the
18 petition as to Shen’s CAT claim because it is unexhausted.
19 See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).
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