Xia v. Barr

Opinion

17-3881 Xia v. Barr BIA

Hom, IJ

A205 442 888

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 18th day of October, two thousand nineteen. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 DENNY CHIN, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 HAIFENG XIA, 14 Petitioner, 15 16 v. 17-3881 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, New York, NY. 24 25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 26 General; Ernesto H. Molina, Jr., 27 Deputy Director; Nancy N. Safavi, 28 Trial Attorney, Office of Immigration 29 Litigation, United States Department 30 of Justice, 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 Haifeng Xia, a native and citizen of China, 6 seeks review of a November 7, 2017, decision of the BIA 7 affirming a December 12, 2016, decision of an Immigration 8 Judge (“IJ”) denying asylum and withholding of removal. In 9 re Haifeng Xia, No. A205 442 888 (B.I.A. Nov. 7, 2017), aff’g 10 No. A205 442 888 (Immig. Ct. N.Y. City Dec. 12, 2016). We 11 assume the parties’ familiarity with the underlying facts and 12 procedural history in this case. 13 We have reviewed the IJ’s decision as modified by the 14 BIA, i.e., minus the adverse credibility determination that 15 the BIA declined to consider. See Xue Hong Yang v. U.S. 16 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The 17 applicable standards of review are well established. See 18 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 19 510, 513 (2d Cir. 2009). 20 Xia became a Christian while in the United States 21 and alleged a fear of persecution in China because he would 22 continue to practice Christianity if removed. Absent past

3

1 persecution, an alien may establish eligibility for asylum by 2 demonstrating “that he has a well-founded fear of future 3 persecution, which requires that the alien present credible 4 testimony that he subjectively fears persecution and 5 establish that his fear is objectively reasonable.” 6 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); 7 see also 8 C.F.R. § 1208.13(b)(2). To demonstrate a well- 8 founded fear, an applicant must show either a reasonable 9 possibility that he “would be singled out” for persecution or 10 that the country of removal has a “pattern or practice” of 11 persecuting individuals similarly situated to him. 8 C.F.R. 12 § 1208.13(b)(2)(iii). Where, as here, an alien expresses a 13 fear based on activities undertaken in the United States, he 14 “must make some showing that authorities in his country of 15 nationality are either aware of his activities or likely to 16 become aware of his activities.” Hongsheng Leng v. Mukasey, 17 528 F.3d 135, 143 (2d Cir. 2008) (per curiam). 18 The agency reasonably concluded that Xia failed to 19 establish a reasonable possibility that the Chinese 20 government would become aware of and then single him out for 21 persecution on account of his practice of Christianity. Xia 22 did not claim that the Chinese government was aware that he

4

1 is a Christian. And the agency reasonably concluded that 2 authorities were unlikely to become aware of and target Xia 3 for his attendance at an unauthorized church in China because 4 the State Department’s 2014 International Religious Freedom 5 Report provided there are an estimated 68 million Protestant 6 Christians in China, only one-third of whom are affiliated 7 with government-sponsored churches, and that efforts to 8 restrict participation in unregistered churches varied by 9 region. As to Xia’s home province of Zhejiang, the record 10 reflects that the Chinese government has in recent years 11 destroyed and removed crosses from churches in the region for 12 allegedly failing to comply with building requirements. But 13 the evidence showed that these measures were taken against 14 public, registered churches. The evidence was otherwise 15 unclear as to the treatment of unregistered church gatherings 16 in Zhejiang. 17 Further, the agency also reasonably determined that Xia 18 would not be singled out because he is not a religious leader. 19 See 8 C.F.R. § 1208.13(b)(2)(iii). The evidence showed that 20 in Zhejiang the Chinese government has mostly focused on and 21 detained church leaders and lawyers who have protested

5

1 demolitions and other building restrictions rather than 2 ordinary worshippers like Xia. 3 For similar reasons, the agency did not err in 4 determining that Xia failed to establish a pattern or practice 5 of persecution of similarly situated individuals—that is, 6 people who attend unregistered churches. The country 7 conditions evidence established that policies targeting 8 Christians attending unregistered churches are not 9 implemented evenly throughout China and, as stated, that the 10 Chinese government is more likely to target more prominent 11 members of the Zhejiang Christian community than Xia. Thus, 12 the agency did not err in determining that Xia failed to 13 demonstrate “systemic or pervasive” persecution of similarly 14 situated Christians sufficient to demonstrate a pattern and 15 practice of persecution in China. See In re A-M-, 23 I. & 16 N. Dec. 737, 741-42 (BIA 2005); see also 8 C.F.R. 17 § 1208.13(b)(2)(iii). 18 Accordingly, because the agency reasonably found that 19 Xia failed to demonstrate a well-founded fear of persecution 20 as needed for asylum, it did not err in finding that Xia 21 failed to meet the higher standard for withholding of removal. 22 See Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 2010). Xia

6

1 did not appeal the IJ’s denial of relief under the Convention 2 Against Torture. 3 For the foregoing reasons, the petition for review is 4 DENIED. All motions and requests for arguments are DENIED 5 and all stays are VACATED.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court