Yao v. Garland

Opinion

23-6060 Yao v. Garland BIA Ling, IJ A205 617 554

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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of November, two thousand twenty-four.

PRESENT: JON O. NEWMAN, SUSAN L. CARNEY, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

JI YANG YAO, Petitioner,

v. 23-6060 NAC

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Zhong Yue Zhang, Zhang & Associates, LLC, Flushing, NY.

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Sarah A. Byrd, Senior Litigation Counsel; Stephanie L. Groff, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Ji Yang Yao, a native and citizen of the People’s Republic of China,

seeks review of a December 27, 2022, decision of the BIA affirming a November 4,

2019, decision of an Immigration Judge (“IJ”) denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture

(“CAT”). In re Ji Yang Yao, No. A205 617 554 (B.I.A. Dec. 27, 2022), aff’g No. A205

617 554 (Immig. Ct. N.Y. City Nov. 4, 2019). We assume the parties’ familiarity

with the underlying facts and procedural history.

We have considered both the IJ’s and the BIA’s opinions. See Wangchuck v.

Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the agency’s

factual findings for substantial evidence, and we review questions of law de novo.

2 See Hongsheng Leng v. Mukasey, 528 F.3d 135, 141 (2d Cir. 2008). “[T]he

administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

The agency did not err in finding that Yao failed to demonstrate a well-

founded fear of persecution based on his activities with the China Democracy

Party (“CDP”) in the United States. Absent past persecution, an applicant may

establish eligibility for asylum by demonstrating a “well-founded fear of future

persecution,” “which requires that the alien present credible testimony that he

subjectively fears persecution and establish that his fear is objectively reasonable.”

Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); see also 8 C.F.R.

§ 1208.13(b)(2). To do so, an applicant must show either a “reasonable

possibility” that he would be “singled out” for persecution or that the country of

removal has a “pattern or practice” of persecuting “similarly situated”

individuals. 8 C.F.R. § 1208.13(b)(2)(i), (iii). Where, as here, an asylum

applicant’s fear is based on activities in the United States, he “must make some

showing that authorities in his country of nationality are either aware of his

activities” or a “reasonable possibility” that they will become aware of his

activities. Hongsheng Leng, 528 F.3d at 143.

3 The agency did not err in concluding that Yao failed to meet his burden.

Yao testified that he joined the CDP in 2011 in the United States. He participated

in protests at the United Nations and the Chinese consulates in New York and

Washington, he gave a speech at one protest, he assisted in mailings sent to “the

people’s representative committee in China” and “universities and colleges”

“advertis[ing] ideas and policies of the CDP,” he took “democracy classes,” and

he received “[o]ver 20” awards for “participation,” and became a “rate 6 official

for the infiltration of democracy department.” Certified Administrative Record

at 100, 103–04, 106 (Tr.), 244–45 (Written Statement).

He feared returning to China because the CDP is “defined as a hostile

organization,” and he had learned in his classes and online of several CDP

members who have been arrested. And he submitted letters from his wife and

mother stating that Chinese authorities had asked them about his involvement

with the CDP, and told them they knew he had attended protests and published

an article. Yao also submitted untranslated group photographs of CDP protests

and mailing events, but he did not allege that he was in the photographs or

identifiable in them; a “Members’ Website” profile that included his name and

photographs of him at protests and mailing events; and the 2018 U.S. State

4 Department Human Rights Report on China, which provides that “[a]uthorities

censored and manipulated the press and the internet,” “[t]hose who . . . posted

sensitive comments online, remained subject to punitive measures,” and the CDP

“remained banned, and the government continues to monitor, detain, and

imprison current and former CDP members.”

Despite this evidence, the agency did not err in concluding that Yao did not

establish an objectively reasonable fear of persecution. The agency can accept an

applicant’s testimony as credible about his activities, but conclude that it

insufficient to meet his burden of proof for asylum. See Garland v. Ming Dai, 593

U.S. 357, 371 (2021). The activities Yao describes – mailings, group protests, and

the publishing of one article – are not “high profile.” Y.C. v. Holder, 741 F.3d 324,

335 (2d Cir. 2013). That he is listed by name and photograph on the CDP website

is insufficient to establish a reasonable likelihood that the Chinese government is

aware of those pages amidst the entirety of the internet. Id. at 336–37 (finding

that “a member page on the CDP website that identifies [petitioner] by name,

displays his head shot, and includes links to photographs of him participating in

protests and stuffing envelopes” was insufficient to establish that Chinese

government was or would likely become aware of his activities). And the agency

5 did not err in declining to credit the letters from his wife and mother. Id. at 334

(concluding that the agency did not err in declining to credit letters from an

applicant’s family in China that alleged government awareness of U.S. activities

because the declarants were interested parties unavailable for cross-examination).

Given the low-level political activities that Yao was engaged in and the agency’s

reasonable decision not to credit the letters from China, the agency did not err in

finding Yao’s fear speculative. Id.; Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129

(2d Cir. 2005) (“In the absence of solid support in the record . . . [an applicant’s]

fear is speculative at best.”).

The agency also did not err in finding that Yao failed to establish a pattern

or practice of persecution in China of similarly situated activists. In re A-M-, 23 I.

& N. Dec. 737, 741 (B.I.A. 2005) (defining a pattern or practice of persecution as the

“systemic or pervasive” persecution of a group); see also 8 C.F.R.

§ 1208.13(b)(2)(iii). Yao’s evidence of arrests of political dissidents was about

prominent dissidents active within China. He did not have documentary

evidence that China has arrested dissidents “without any positions in CDP” for

their overseas activities upon return to China. Accordingly, he failed to show that

he was similarly situated to the individuals targeted for persecution. See Y.C., 741

6 F.3d at 334–35 (concluding that petitioner failed to establish a pattern or practice

of persecution of similarly situated people where he had engaged in only non-

“high profile” work in the United States like “clean[ing] and fil[ing] papers . . . and

publish[ing] a single editorial,” and where evidence reflected arrests of China-

based dissident with a leadership role in the CDP); Lianping Li v. Lynch, 839 F.3d

144, 150–51 (2d Cir. 2016) (finding that petitioner failed to establish a pattern or

practice of persecution of returning Chinese citizens who had joined the CDP in

the United States). Moreover, even crediting Yao’s allegation that a handful of

individuals engaged in political activism outside of China had been arrested, such

isolated incidents would be insufficient to establish a well-founded fear. See Jian

Hui Shao v. Mukasey, 546 F.3d 138, 157 (2d Cir. 2008) (noting that the Supreme

Court has “cited approvingly to a one-in-ten example of persecution to illustrate

the sort of reasonable possibility that would demonstrate a well-founded fear”

(quotation marks omitted)).

In sum, the agency did not err in concluding that Yao failed to establish that

the Chinese government was or would become aware of his CDP activities in the

United States. See Y.C., 741 F.3d at 334–35; Hongsheng Leng, 528 F.3d at 142–43.

That finding was dispositive because Yao’s failure to show a well-founded fear for

7 asylum means that he “necessarily” failed to meet the higher burdens for

withholding of removal and CAT relief. Lecaj v. Holder, 616 F.3d 111, 119–20 (2d

Cir. 2010).

For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

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