Zhao v. Wilkinson

• Court: Court of Appeals for the Second Circuit
• Decided: February 4, 2021
• Docket: 19-398
• Status: Unpublished

Opinion

19-398 Zhao v. Wilkinson BIA Christensen, IJ A208 617 791 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 4th day of February, two thousand twenty-one.

PRESENT: ROSEMARY S. POOLER, RICHARD J. SULLIVAN, STEVEN J. MENASHI, Circuit Judges. _____________________________________

SHOULONG ZHAO, Petitioner,

v. 19-398 NAC ROBERT M. WILKINSON, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. 1 _____________________________________

FOR PETITIONER: Gerald Karikari, Karikari & Associates, P.C., New York, NY.

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Robert M. Wilkinson is automatically substituted for former Acting Attorney General Jeffrey A. Rosen as Respondent. FOR RESPONDENT: Linda S. Wernery, Assistant Director; William C. Minick, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,

AND DECREED that this petition for review of a decision of

the Board of Immigration Appeals (“BIA”) is DENIED.

Petitioner Shoulong Zhao, a native and citizen of the

People’s Republic of China, seeks review of a January 30,

2019, decision of the BIA affirming a December 12, 2017,

decision of an Immigration Judge (“IJ”) denying his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Shoulong

Zhao, No. A208 617 791 (B.I.A. Jan. 30, 2019), aff’g No. A208

617 791 (Immig. Ct. N.Y. City Dec. 12, 2017). We assume the

parties’ familiarity with the underlying facts and procedural

history.

Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA. Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). “We review the

BIA's legal conclusions de novo, and its factual findings .

. . under the substantial evidence standard.” Y.C. v.

2 Holder, 741 F.3d 324, 332 (2d Cir. 2013) (internal quotation

marks omitted); see also 8 U.S.C. § 1252(b)(4)(B).

I. Past Persecution

While the Immigration and Nationality Act does not define

persecution, the BIA has defined it as “a threat to the life

or freedom of, or the infliction of suffering or harm upon,

those who differ in a way regarded as offensive.” Baba v.

Holder, 569 F.3d 79, 85 (2d Cir. 2009) (internal quotation

marks omitted); Matter of Acosta, 19 I. & N. Dec. 211, 222

(BIA 1985), overruled in part on other grounds by INS v.

Cardoza-Fonseca, 480 U.S. 421 (1987). Past persecution can

be based on harm other than threats to life or freedom,

“includ[ing] non-life-threatening violence and physical

abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir.

2006), but the harm must be sufficiently severe to rise above

“mere harassment,” Ivanishvili, 433 F.3d at 341; see also Mei

Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)

(“[P]ersecution is an extreme concept that does not include

every sort of treatment our society regards as offensive.”

(internal quotation marks omitted)). “[T]he difference

between harassment and persecution is necessarily one of

degree that must be decided on a case-by-case basis.”

3 Ivanishvili, 433 F.3d at 341.

The agency did not err by determining that Zhao’s past

harm did not rise to the level of persecution. Zhao testified

that police beat his back with a baton, but that the pain was

not bad and that he did not seek medical treatment afterwards.

Zhao also testified that he disarmed one of the officers and

used a police baton to beat both of them, fracturing one

officer’s arm and incapacitating the other. Based on this

testimony, the agency reasonably determined that Zhao’s harm

did not rise to the level of persecution because he (1) was

not seriously injured, and (2) did not seek medical treatment.

See Jian Qiu Liu v. Holder, 632 F.3d 820, 821–22 (2d Cir.

2011) (upholding agency’s determination that applicant’s past

harm — being slapped in the face, punched repeatedly, and

subsequently detained for two days — did not rise to the level

of persecution).

Zhao’s reliance on Beskovic for the proposition that even

a minor beating can rise to the level of persecution is

misplaced. In Beskovic, we held that “[t]he BIA must . . .

be keenly sensitive to the fact that a ‘minor beating’ or,

for that matter, any physical degradation designed to cause

pain, humiliation, or other suffering, may rise to the level

4 of persecution if it occurred in the context of an arrest or

detention on the basis of a protected ground.” 467 F.3d at

226 (emphasis added). But Zhao was not arrested or detained

when the police hit him on the back, and the agency considered

the context of his beating. See id. In any event,

regardless of whether harm is inflicted upon an individual

engaged in a protected act, an applicant has the burden to

show that the harm was sufficiently severe. See 8 U.S.C.

§ 1158(b)(1)(B); Ivanishvili, 433 F.3d at 341. Here, the

level of harm is less severe than that in Jian Qiu Liu, where

the applicant was “punched . . . repeatedly in the face,

chest, and back” by several family planning officials before

being detained for two days. 632 F.3d at 821.

II. Future Persecution

Absent past persecution, a noncitizen may establish

eligibility for asylum by demonstrating a well-founded fear

of future persecution. See 8 C.F.R. § 1208.13(b)(2);

Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

To do so, an applicant must show either a reasonable

possibility that he will be singled out for persecution or

that the country of removal has a pattern or practice of

persecuting similarly situated individuals. See 8 C.F.R.

5 § 1208.13(b)(2)(iii); In re A-M-, 23 I. & N. Dec. 737, 741

(BIA 2005) (explaining that a pattern or practice of

persecution involves the “systemic or pervasive” persecution

of a group). “In the absence of solid support in the record,”

a fear of persecution is not well founded and “is speculative

at best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d

Cir. 2005). Zhao does not challenge the agency’s finding

that he will be singled out for assaulting two police officers

rather than for practicing his religion; therefore, he has

waived review of that determination. See Norton v. Sam’s

Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not

sufficiently argued in the briefs are considered waived and

normally will not be addressed on appeal.”).

The agency reasonably concluded that Zhao did not show a

pattern or practice of persecution of Christians. In support

of this argument, Zhao relied solely on the State Department’s

2017 International Religious Freedom Report (the “IRF

Report”), arguing that it showed that the Chinese government

considers Christianity to be an evil cult. However, the IRF

Report was more nuanced, stating that the Chinese government

considers 13 specific Christian groups to be evil cults. But

Zhao does not allege that he belongs to one of those groups.

6 On appeal, Zhao also argues that an updated 2018

Religious Freedom Report shows that China has a pattern of

detaining, torturing, and harassing Christians. But that

report, which was released in June 2019, was not before the

agency at the time of the BIA’s January 2019 decision. See

8 U.S.C. § 1252(b)(4)(A) (limiting judicial review to “the

administrative record on which the order of removal is

based”). Zhao could have moved to reopen in the BIA for

consideration of that report. See 8 C.F.R. § 1003.2(c)

(providing for motions to reopen for consideration of new

evidence before the BIA); Xiao Xing Ni v. Gonzales, 494 F.3d

260, 262 (2d Cir. 2007) (“[W]e should not exercise [any

inherent power to remand] if: [i] the basis for the remand is

an instruction to consider documentary evidence that was not

in the record before the BIA; and [ii] the agency regulations

set forth procedures to reopen a case before the BIA for the

taking of additional evidence.”). In any event, that report

does not identify widespread persecution of Christians in

Fujian Province, Zhao’s home region. Thus, even if we had

inherent authority to remand, Zhao has not identified

“sufficiently compelling circumstances” to do so on the basis

of this report. Xiao Xing Ni, 494 F.3d at 267 (internal

7 quotation marks omitted).

Likewise, the 2017 IRF Report before the BIA did not

identify government action against Christians in Fujian

Province, other than the 20-day detention of a Catholic

bishop. Further, the 2017 IRF Report suggested that millions

of Protestants practice in unregistered churches in China.

It also explained that authorities in some areas allow

unregistered churches to hold services, although authorities

in other areas target such churches for abuse. Given the

large number of Christians practicing in unregistered

churches, the fact that restrictions on their activities vary

by region, and the lack of evidence that Christians in Fujian

Province face heightened restrictions, the agency did not err

in determining that Zhao did not establish a pattern or

practice of persecution of similarly situated Christians.

See 8 C.F.R. § 1208.13(b)(2)(iii); Santoso v. Holder, 580

F.3d 110, 112 & n.1 (2d Cir. 2009) (upholding denial of

pattern or practice claim where evidence reflected that

violence was not nationwide and that Catholics in many parts

of Indonesia were free to practice their faith); Jian Hui

Shao v. Mukasey, 546 F.3d 138, 149, 169–70 (2d Cir. 2008)

(finding no error in requiring locality-specific evidence

8 where the record reflects that conditions vary by region).

III. Torture

Zhao’s argument that he is more likely than not to be

tortured if he returns to China given his past encounter with

the police and China’s pattern and practice of persecuting

Christians is likewise unavailing. As explained above, the

agency did not err in rejecting Zhao’s pattern or practice

claim. Further, even if he is imprisoned in China based on

his past encounter with the police, he has not submitted

particularized evidence as needed to meet his burden of

showing that he is more likely than not to be tortured in

prison. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d

156, 160 (2d Cir. 2005) (concluding that “particularized

evidence” beyond State Department reports is necessary to

establish eligibility for CAT protection for applicant

alleging she would be tortured for leaving China illegally);

Jian Xing Huang, 421 F.3d at 129 (“In the absence of solid

support in the record . . . , [an applicant’s] fear is

speculative at best.”); Mu-Xing Wang v. Ashcroft, 320 F.3d

130, 144 (2d Cir. 2003) (an applicant for CAT relief must

show a likelihood of torture in “his particular alleged

circumstances” as a military deserter). Specifically, on

9 appeal to the BIA and in his brief in this Court, Zhao did

not identify any evidence that someone in his particular

circumstances is likely to be tortured in prison.

At Zhao’s request, the IJ took administrative notice of

the State Department’s 2016 Human Rights Report for China,

which states that former prisoners have reported being

tortured in China and notes that torture is a “systemic”

problem. But the report does not state that prisoners

arrested for attacking the police are targeted for torture.

Thus, the IJ reasonably concluded that this report did not

show a likelihood of torture for someone in Zhao’s particular

circumstances. See Mu Xiang Lin, 432 F.3d at 160; Mu-Xing

Wang, 320 F.3d at 144. And the administrative record does

not contain any other evidence to support Zhao’s claim.

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED.

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