18-1822 Zhao v. Barr BIA Sponzo, IJ A202 020 722 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.
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 23rd day of October, two thousand twenty.
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, DENNIS JACOBS, SUSAN L. CARNEY, Circuit Judges. _____________________________________
JIE ZHAO, Petitioner,
v. 18-1822 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Mike P. Gao, Esq., Flushing, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Kohsei Ugumori, Senior Litigation Counsel; Sarah K. Pergolizzi, 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 Jie Zhao, a native and citizen of the People’s
Republic of China, seeks review of a May 22, 2018, decision
of the BIA affirming a July 11, 2017, decision of an
Immigration Judge (“IJ”) denying Zhao’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Jie Zhao, No. A
202 020 722 (B.I.A. Mar. 22, 2018), aff’g No. A 202 020 722
(Immig. Ct. N.Y. City July 11, 2017). We assume the parties’
familiarity with the underlying facts and procedural history.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions “for the sake of
completeness.” 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 its legal conclusions
de novo. See 8 U.S.C. § 1252(b)(4)(B); Y.C. v. Holder, 741
F.3d 325, 332 (2d Cir. 2013). 2 Asylum and Withholding of Removal
An applicant for asylum “must establish that race,
religion, nationality, membership in a particular social
group, or political opinion was or will be at least one
central reason for” the claimed persecution. 8 U.S.C. §§
1158(b)(1)(B)(i). “Likewise, a person seeking withholding of
removal must show that his or her ‘life or freedom would be
threatened in that country because of the alien’s race,
group, or political opinion.’” Martinez De Artiga v. Barr,
No. 17-2898-ag, 2020 WL 3067492, at *2 (2d Cir. June 10, 2020)
(quoting 8 U.S.C. § 1231(b)(3)(A) (emphasis added)). To
constitute a particular social group, a group must be “(1)
composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3)
socially distinct within the society in question.” Matter
of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014). “A
particular social group cannot be defined exclusively by the
claimed persecution, . . . it must be recognizable as a
discrete group by others in the society, and . . . it must
have well-defined boundaries.” Id. at 232 (quotation marks
omitted). “Courts review de novo the legal determination of
3 whether a group constitutes a ‘particular social group’ under
the INA.” Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).
The IJ did not err in determining that Zhao’s proposed
social group of practitioners of an exercise activity,
Zhuangmei Cao (“ZMC”), was not cognizable because Zhao did
not demonstrate that the group was socially distinct. “To
be socially distinct, a group . . . must be perceived as a
group by society.” Matter of M-E-V-G-, 26 I. & N. Dec. at
240. “Evidence such as country conditions reports, expert
witness testimony, and press accounts of discriminatory laws
and policies, historical animosities, and the like may
establish that a group exists and is perceived as ‘distinct’
or ‘other’ in a particular society.” Id. at 244.
Zhao testified that the Chinese government suppresses
ZMC practitioners and that practice of ZMC is illegal.
Additionally, two letters, including one from Zhao’s wife,
state that the Chinese government began to persecute ZMC
practitioners in 2006. However, “[a]lthough a persecutor’s
perception can be indicative of whether society views a group
as distinct, a persecutor’s perception alone is not enough to
establish a cognizable social group.” Paloka, 762 F.3d at
196. Zhao did not testify or present evidence regarding how
4 Chinese society views practitioners of ZMC or whether Chinese
society would view such practitioners as a distinct group.
He therefore failed to establish that he was persecuted on
account of his membership in a cognizable social group. See
Matter of W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014)
(“[T]here must be evidence showing that society in general
perceives, considers, or recognizes persons sharing the
particular characteristic to be a group.”). Thus, he did not
establish he was eligible for asylum or withholding of
removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).
CAT
An applicant for CAT protection must “establish that it
is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2). Unlike asylum and withholding, CAT relief
does not require a nexus to any ground. See id. “Torture
is defined as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a
person . . . by or at the instigation of or with the consent
or acquiescence of a public official or other person acting
in an official capacity.” 8 C.F.R. § 1208.18(a)(1); see also
Pierre v. Gonzales, 502 F.3d 109, 114, 118 (2d Cir. 2007).
5 The agency must consider “all evidence relevant to the
possibility of future torture,” including: “[e]vidence of
past torture,” evidence regarding the possibility of internal
relocation, “[e]vidence of gross, flagrant, or mass
violations of human rights,” and “[o]ther relevant
information regarding conditions in the country of removal.”
8 C.F.R. § 1208.16(c)(3)(i)–(iv).
We review the agency’s determination regarding the
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18-1822 Zhao v. Barr BIA Sponzo, IJ A202 020 722 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.
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 23rd day of October, two thousand twenty.
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, DENNIS JACOBS, SUSAN L. CARNEY, Circuit Judges. _____________________________________
JIE ZHAO, Petitioner,
v. 18-1822 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Mike P. Gao, Esq., Flushing, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Kohsei Ugumori, Senior Litigation Counsel; Sarah K. Pergolizzi, 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 Jie Zhao, a native and citizen of the People’s
Republic of China, seeks review of a May 22, 2018, decision
of the BIA affirming a July 11, 2017, decision of an
Immigration Judge (“IJ”) denying Zhao’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Jie Zhao, No. A
202 020 722 (B.I.A. Mar. 22, 2018), aff’g No. A 202 020 722
(Immig. Ct. N.Y. City July 11, 2017). We assume the parties’
familiarity with the underlying facts and procedural history.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions “for the sake of
completeness.” 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 its legal conclusions
de novo. See 8 U.S.C. § 1252(b)(4)(B); Y.C. v. Holder, 741
F.3d 325, 332 (2d Cir. 2013). 2 Asylum and Withholding of Removal
An applicant for asylum “must establish that race,
religion, nationality, membership in a particular social
group, or political opinion was or will be at least one
central reason for” the claimed persecution. 8 U.S.C. §§
1158(b)(1)(B)(i). “Likewise, a person seeking withholding of
removal must show that his or her ‘life or freedom would be
threatened in that country because of the alien’s race,
group, or political opinion.’” Martinez De Artiga v. Barr,
No. 17-2898-ag, 2020 WL 3067492, at *2 (2d Cir. June 10, 2020)
(quoting 8 U.S.C. § 1231(b)(3)(A) (emphasis added)). To
constitute a particular social group, a group must be “(1)
composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3)
socially distinct within the society in question.” Matter
of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014). “A
particular social group cannot be defined exclusively by the
claimed persecution, . . . it must be recognizable as a
discrete group by others in the society, and . . . it must
have well-defined boundaries.” Id. at 232 (quotation marks
omitted). “Courts review de novo the legal determination of
3 whether a group constitutes a ‘particular social group’ under
the INA.” Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).
The IJ did not err in determining that Zhao’s proposed
social group of practitioners of an exercise activity,
Zhuangmei Cao (“ZMC”), was not cognizable because Zhao did
not demonstrate that the group was socially distinct. “To
be socially distinct, a group . . . must be perceived as a
group by society.” Matter of M-E-V-G-, 26 I. & N. Dec. at
240. “Evidence such as country conditions reports, expert
witness testimony, and press accounts of discriminatory laws
and policies, historical animosities, and the like may
establish that a group exists and is perceived as ‘distinct’
or ‘other’ in a particular society.” Id. at 244.
Zhao testified that the Chinese government suppresses
ZMC practitioners and that practice of ZMC is illegal.
Additionally, two letters, including one from Zhao’s wife,
state that the Chinese government began to persecute ZMC
practitioners in 2006. However, “[a]lthough a persecutor’s
perception can be indicative of whether society views a group
as distinct, a persecutor’s perception alone is not enough to
establish a cognizable social group.” Paloka, 762 F.3d at
196. Zhao did not testify or present evidence regarding how
4 Chinese society views practitioners of ZMC or whether Chinese
society would view such practitioners as a distinct group.
He therefore failed to establish that he was persecuted on
account of his membership in a cognizable social group. See
Matter of W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014)
(“[T]here must be evidence showing that society in general
perceives, considers, or recognizes persons sharing the
particular characteristic to be a group.”). Thus, he did not
establish he was eligible for asylum or withholding of
removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).
CAT
An applicant for CAT protection must “establish that it
is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2). Unlike asylum and withholding, CAT relief
does not require a nexus to any ground. See id. “Torture
is defined as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a
person . . . by or at the instigation of or with the consent
or acquiescence of a public official or other person acting
in an official capacity.” 8 C.F.R. § 1208.18(a)(1); see also
Pierre v. Gonzales, 502 F.3d 109, 114, 118 (2d Cir. 2007).
5 The agency must consider “all evidence relevant to the
possibility of future torture,” including: “[e]vidence of
past torture,” evidence regarding the possibility of internal
relocation, “[e]vidence of gross, flagrant, or mass
violations of human rights,” and “[o]ther relevant
information regarding conditions in the country of removal.”
8 C.F.R. § 1208.16(c)(3)(i)–(iv).
We review the agency’s determination regarding the
likelihood of torture for substantial evidence and “review de
novo questions of law regarding what evidence will suffice to
carry [the] applicant’s burden of proof.” Joaquin-Porras v.
Gonzales, 435 F.3d 172, 181 (2d Cir. 2006) (internal quotation
marks omitted).
The record supports the IJ’s determination that Zhao did
not demonstrate that it was more likely than not that he would
be tortured in China. See Ramsameachire v. Ashcroft, 357
F.3d 169, 185 (2d Cir. 2004) (“A CAT claim focuses solely on
the likelihood that the alien will be tortured if returned to
his or her home country, regardless of . . . his or her past
experiences.”). There were no news articles or reports in
the record showing that the Chinese government targets ZMC
practitioners. Besides Zhao’s testimony, the only evidence
6 that the Chinese government targets ZMC practitioners was two
letters from relatives. The IJ could reasonably assign
little weight to these letters. See Matter of H-L-H- & Z-Y-
Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (finding that unsworn
letters from the applicant’s friends and family did not
provide substantial support for the applicant’s claims
because they were from interested witnesses not subject to
cross-examination), overruled on other grounds by Hui Lin
Huang, 677 F.3d 130, 133–38 (2d Cir. 2012). Because of the
lack of evidence regarding persecution of ZMC practitioners,
substantial evidence supports the agency’s denial of CAT
protection. See Joaquin-Porras, 435 F.3d at 181–82.
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