19-2643 Wang v. Garland BIA Poczter, IJ A206 289 951 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 6th day of May, two thousand twenty-one. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 BARRINGTON D. PARKER, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 YI LUN WANG, 14 Petitioner, 15 16 v. 19-2643 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Felipe Alexandre, Esq., Alexandre 24 Law Firm, Flushing, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Stephen J. 28 Flynn, Assistant Director; Ann M. 29 Welhaf, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Yi Lun Wang, a native and citizen of the
10 People’s Republic of China, seeks review of a July 23, 2019
11 decision of the BIA affirming a January 29, 2018 decision of
12 an Immigration Judge (“IJ”) denying asylum, withholding of
13 removal, and relief under the Convention Against Torture
14 (“CAT”). In re Yi Lun Wang, No. A206 289 951 (B.I.A. July
15 23, 2019), aff’g No. A206 289 951 (Immig. Ct. N.Y.C. Jan. 29,
16 2018). We assume the parties’ familiarity with the
17 underlying facts and procedural history.
18 We have reviewed the IJ’s decision as supplemented by
19 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
20 Cir. 2005). The applicable standards of review are well
21 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
22 Holder, 562 F.3d 510, 513 (2d Cir. 2009); Li Yong Cao v. U.S.
23 Dep’t of Justice, 421 F.3d 149, 157 (2d Cir. 2005).
2 1 Religious Persecution Claim
2 The agency did not err in concluding that Wang failed to
3 establish his eligibility for relief on account of his
4 conversion to Christianity in the United States. Absent past
5 persecution, a noncitizen may establish eligibility for
6 asylum by demonstrating a well-founded fear of future
7 persecution. 8 C.F.R. § 1208.13(b)(2); Hongsheng Leng v.
8 Mukasey, 528 F.3d 135, 142 (2d Cir. 2008). To do so, an
9 applicant must show either a reasonable possibility that he
10 would be singled out for persecution or that the country of
11 removal has a pattern or practice of persecuting similarly
12 situated individuals. 8 C.F.R. § 1208.13(b)(2)(iii). When
13 an applicant’s claim is based on activities commenced in the
14 United States, the applicant “must make some showing that
15 authorities in his country of nationality are either aware of
16 his activities or likely to become aware of his activities.”
17 Hongsheng Leng, 528 F.3d at 143.
18 The agency reasonably found that Wang, who did not assert
19 that Chinese officials are aware of his religious practice,
20 failed to establish a reasonable possibility that his
21 religious practice would be discovered. His testimony that
3 1 he communicated with church members in the United States using
2 an internet application monitored by the Chinese government
3 is insufficient, particularly given that he did not describe
4 those communications or show why they would be of interest to
5 the Chinese government. See Jian Xing Huang v. U.S. INS, 421
6 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid support
7 in the record . . . [an applicant’s] fear is speculative at
8 best.”)); cf. Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013)
9 (finding “most unlikely” the “suggestion that the Chinese
10 government is aware of every anti-Communist or pro-democracy
11 piece of commentary published online”).
12 Further, the agency reasonably found that Wang failed to
13 establish that his fear of future persecution on account of
14 his religion was objectively reasonable. The agency did not
15 err in focusing on persecution on the provincial level given
16 evidence that the Chinese government’s treatment of religious
17 practitioners varies by region. See 8 C.F.R.
18 § 1208.13(b)(2)(ii) (“An applicant does not have a well-
19 founded fear of persecution if the applicant could avoid
20 persecution by relocating to another part of the applicant’s
21 country of nationality . . . .”); see also Jian Hui Shao v.
4 1 Mukasey, 546 F.3d 138, 142, 149, 169 (2d Cir. 2008) (finding
2 no error in agency’s requirement that an applicant
3 demonstrate a well-founded fear of persecution specific to
4 his or her local area when persecutory acts varied by
5 locality). The agency also did not err in concluding that
6 evidence of brief detentions and one church closure in Wang’s
7 home province did not rise to the level of persecution. See
8 Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)
9 (“[P]ersecution is an extreme concept that does not include
10 every sort of treatment our society regards as offensive.”
11 (internal quotation marks omitted)); Ivanishvili v. U.S.
12 Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)
13 (“[P]ersecution does not encompass mere harassment.”).
14 The agency also did not err in determining that Wang
15 failed to demonstrate “systemic or pervasive” persecution of
16 similarly situated Christians as needed to demonstrate a
17 pattern or practice of persecution. The evidence reveals
18 that tens of millions of Christians practice in unregistered
19 churches in China and that in some areas restrictions are
20 limited. In re A-M-, 23 I.&N. Dec. 737, 741 (B.I.A. 2005);
21 see also 8 C.F.R. § 1208
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19-2643 Wang v. Garland BIA Poczter, IJ A206 289 951 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 6th day of May, two thousand twenty-one. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 BARRINGTON D. PARKER, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 YI LUN WANG, 14 Petitioner, 15 16 v. 19-2643 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Felipe Alexandre, Esq., Alexandre 24 Law Firm, Flushing, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Stephen J. 28 Flynn, Assistant Director; Ann M. 29 Welhaf, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Yi Lun Wang, a native and citizen of the
10 People’s Republic of China, seeks review of a July 23, 2019
11 decision of the BIA affirming a January 29, 2018 decision of
12 an Immigration Judge (“IJ”) denying asylum, withholding of
13 removal, and relief under the Convention Against Torture
14 (“CAT”). In re Yi Lun Wang, No. A206 289 951 (B.I.A. July
15 23, 2019), aff’g No. A206 289 951 (Immig. Ct. N.Y.C. Jan. 29,
16 2018). We assume the parties’ familiarity with the
17 underlying facts and procedural history.
18 We have reviewed the IJ’s decision as supplemented by
19 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
20 Cir. 2005). The applicable standards of review are well
21 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
22 Holder, 562 F.3d 510, 513 (2d Cir. 2009); Li Yong Cao v. U.S.
23 Dep’t of Justice, 421 F.3d 149, 157 (2d Cir. 2005).
2 1 Religious Persecution Claim
2 The agency did not err in concluding that Wang failed to
3 establish his eligibility for relief on account of his
4 conversion to Christianity in the United States. Absent past
5 persecution, a noncitizen may establish eligibility for
6 asylum by demonstrating a well-founded fear of future
7 persecution. 8 C.F.R. § 1208.13(b)(2); Hongsheng Leng v.
8 Mukasey, 528 F.3d 135, 142 (2d Cir. 2008). To do so, an
9 applicant must show either a reasonable possibility that he
10 would be singled out for persecution or that the country of
11 removal has a pattern or practice of persecuting similarly
12 situated individuals. 8 C.F.R. § 1208.13(b)(2)(iii). When
13 an applicant’s claim is based on activities commenced in the
14 United States, the applicant “must make some showing that
15 authorities in his country of nationality are either aware of
16 his activities or likely to become aware of his activities.”
17 Hongsheng Leng, 528 F.3d at 143.
18 The agency reasonably found that Wang, who did not assert
19 that Chinese officials are aware of his religious practice,
20 failed to establish a reasonable possibility that his
21 religious practice would be discovered. His testimony that
3 1 he communicated with church members in the United States using
2 an internet application monitored by the Chinese government
3 is insufficient, particularly given that he did not describe
4 those communications or show why they would be of interest to
5 the Chinese government. See Jian Xing Huang v. U.S. INS, 421
6 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid support
7 in the record . . . [an applicant’s] fear is speculative at
8 best.”)); cf. Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013)
9 (finding “most unlikely” the “suggestion that the Chinese
10 government is aware of every anti-Communist or pro-democracy
11 piece of commentary published online”).
12 Further, the agency reasonably found that Wang failed to
13 establish that his fear of future persecution on account of
14 his religion was objectively reasonable. The agency did not
15 err in focusing on persecution on the provincial level given
16 evidence that the Chinese government’s treatment of religious
17 practitioners varies by region. See 8 C.F.R.
18 § 1208.13(b)(2)(ii) (“An applicant does not have a well-
19 founded fear of persecution if the applicant could avoid
20 persecution by relocating to another part of the applicant’s
21 country of nationality . . . .”); see also Jian Hui Shao v.
4 1 Mukasey, 546 F.3d 138, 142, 149, 169 (2d Cir. 2008) (finding
2 no error in agency’s requirement that an applicant
3 demonstrate a well-founded fear of persecution specific to
4 his or her local area when persecutory acts varied by
5 locality). The agency also did not err in concluding that
6 evidence of brief detentions and one church closure in Wang’s
7 home province did not rise to the level of persecution. See
8 Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)
9 (“[P]ersecution is an extreme concept that does not include
10 every sort of treatment our society regards as offensive.”
11 (internal quotation marks omitted)); Ivanishvili v. U.S.
12 Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)
13 (“[P]ersecution does not encompass mere harassment.”).
14 The agency also did not err in determining that Wang
15 failed to demonstrate “systemic or pervasive” persecution of
16 similarly situated Christians as needed to demonstrate a
17 pattern or practice of persecution. The evidence reveals
18 that tens of millions of Christians practice in unregistered
19 churches in China and that in some areas restrictions are
20 limited. In re A-M-, 23 I.&N. Dec. 737, 741 (B.I.A. 2005);
21 see also 8 C.F.R. § 1208.13(b)(2)(iii).
5 1 Accordingly, the agency reasonably concluded that Wang
2 failed to establish a well-founded fear of persecution on
3 account of his religion. See 8 C.F.R. § 1208.13(b)(2). That
4 finding was dispositive of Wang’s requests for asylum,
5 withholding of removal, and CAT relief. * See Lecaj v.
6 Holder, 616 F.3d 111, 119–20 (2d Cir. 2010) (explaining that
7 an applicant who fails to show sufficient risk of persecution
8 required for asylum “necessarily fails” to meet the higher
9 burdens for withholding of removal and CAT relief).
10 Imputed Political Opinion Claim
11 Wang argues that the BIA failed to consider his claim
12 that he fears persecution on account of an anticorruption
13 political opinion imputed to him based on his father’s dispute
14 with the Chinese government resulting from a refusal to pay
15 bribes to local officials. His argument is without merit.
16 The BIA adopted and affirmed the IJ’s decision and reasonably
17 concluded that Wang did not establish either past persecution
* The BIA and Government incorrectly conclude that Wang waived his CAT claim before the BIA. The IJ denied CAT relief in part because Wang failed to satisfy the lower burden of proving a well-founded fear of persecution. Thus, Wang’s challenge to that finding on appeal to the BIA necessarily included a challenge to the denial of CAT relief. 6 1 to himself based on his father’s dispute, see Shi Liang Lin
2 v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir. 2007)
3 (“[T]he statutory scheme unambiguously dictates that
4 applicants can become candidates for asylum relief only based
5 on persecution that they themselves have suffered or must
6 suffer.”), or a well-founded fear of future persecution on
7 that ground given that local officials had not contacted his
8 father since 2011 or expressed any interest in Wang, see Jian
9 Xing Huang, 421 F.3d at 129; see also Melgar de Torres v.
10 Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding fear of
11 persecution weakened when similarly situated family members
12 remain unharmed in petitioner’s native country).
13 Motion to Remand
14 The BIA did not abuse its discretion in denying Wang’s
15 motion to remand on the ground that his new evidence would
16 not change the outcome of his case. See Li Yong Cao, 421
17 F.3d at 156. Wang’s evidence did not establish that the
18 Chinese government would be interested in his online
19 communications, or describe incidents of harm in his home
20 province directed at Christians and which would rise to the
21 level of persecution. Absent evidence of increased
7 1 persecution, the BIA was not required to expressly address
2 newly promulgated religious regulations discussed in a report
3 Wang submitted on appeal. See Jian Hui Shao, 546 F.3d at 169
4 (“[W]e do not demand that the BIA expressly parse or refute
5 on the record each individual argument or piece of evidence
6 offered by the petitioner.” (internal quotation marks
7 omitted)).
8 For the foregoing reasons, the petition for review is
9 DENIED. All pending motions and applications are DENIED and
10 stays VACATED.
11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court