19-451 Zhu v. Barr BIA Douchy, IJ A206 580 554 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 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 9th day of June, two thousand twenty. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 10 Circuit Judges. 11 _____________________________________ 12 14 Petitioner, 15 16 v. 19-451 17 NAC 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jay Ho Lee, Jay Ho Lee Law 24 Offices LLC, New York, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Kiley Kane, 28 Senior Litigation Counsel; Deitz 29 P. Lefort, Trial Attorney, Office 30 of Immigration Litigation, United 31 1 States Department of Justice, 2 Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Sheng Zhu, a native and citizen of the
9 People’s Republic of China, seeks review of a February 7,
10 2019 decision of the BIA affirming a November 13, 2017
11 decision of an Immigration Judge (“IJ”) denying asylum,
12 withholding of removal, and relief under the Convention
13 Against Torture (“CAT”). In re Sheng Zhu, No. A206 580 554
14 (B.I.A. Feb. 7, 2019), aff’g No. A206 580 554 (Immig. Ct.
15 N.Y. City Nov. 13, 2017). We assume the parties’ familiarity
16 with the underlying facts and procedural history.
17 In lieu of filing a brief, the Government moves
18 for summary denial of Zhu’s petition for review. Rather than
19 determine if the petition is frivolous as required for summary
20 denial, Pillay v. INS, 45 F.3d 14, 16–17 (2d Cir. 1995), we
21 construe the Government’s motion as a brief and deny the
22 petition on the merits. Under the circumstances of this
23 case, we have reviewed both the IJ’s and BIA’s decisions “for
24 the sake of completeness.” Wangchuck v. Dep’t of Homeland 2 1 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The standards of
2 review are well established. See Y.C. v. Holder, 741 F.3d
3 324, 332 (2d Cir. 2013).
4 The agency did not err in finding that Zhu failed to meet
5 his burden of showing an objectively reasonable fear of future
6 persecution. Absent past persecution, an applicant may
7 prevail on an asylum claim by demonstrating that “he
8 subjectively fears future persecution and . . . that his fear
9 is objectively reasonable.” Ramsameachire v. Ashcroft, 357
10 F.3d 169, 178 (2d Cir. 2004). An applicant may make this
11 showing by establishing either “a reasonable possibility he
12 . . . would be singled out individually for persecution,” or
13 “a pattern or practice” of persecution of “persons similarly
14 situated” to him. 8 C.F.R. § 1208.13(b)(2)(iii)(A); see
15 also Y.C., 741 F.3d at 332; In re A-M-, 23 I. & N. Dec. 737,
16 741 (B.I.A. 2005) (defining a pattern or practice of
17 persecution as the “systemic or pervasive” persecution of a
18 group). Where the claim is based on activities undertaken
19 after the applicant’s arrival in the United States, this
20 requires “some showing that authorities in his country of
21 nationality are (1) aware of his activities or (2) likely to
22 become aware of his activities.” Hongsheng Leng v. Mukasey,
3 1 528 F.3d 135, 138 (2d Cir. 2008). A “fear may be well-founded
2 even if there is only a slight, though discernible, chance of
3 persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir.
4 2000) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431
5 (1987)). But a fear is not objectively reasonable if it
6 lacks “solid support” in the record and is merely “speculative
7 at best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d
8 Cir. 2005).
9 The agency reasonably concluded that Zhu’s fear was not
10 objectively reasonable. First, Zhu failed to establish that
11 the Chinese authorities were aware of his activities or would
12 likely become aware of them. He asserted that “it [was]
13 possible” that the Chinese government monitored his WeChat
14 activity and was aware of his proselytizing, due to the
15 Chinese government’s ban on proselytism. Certified
16 Administrative Record (“CAR”) at 97. However, the 2009 State
17 Department report reflects that proselytizing is not
18 completely banned, but rather permitted in registered places
19 of worship and private settings. The 2016 report provides
20 that the State Administration for Religious Affairs allows
21 family and friends to meet for home worship without
22 registering and, in a brief paragraph that appears to place
4 1 restrictions on Buddhists, states that public proselytizing
2 and “meeting in unregistered places of worship is not
3 permitted.” CAR at 127. The 2016 report provides both
4 that “[r]eligious regulations . . . vary by province” and
5 that there are continuing reports of repression throughout
6 China, including restrictions on “expressing religious
7 beliefs in public and in private.” CAR at 127, 129. Neither
8 report discusses incidents of persecution of Catholics or
9 other religious adherents for posts on social media. Based
10 on this evidence, we cannot find error in the agency’s
11 conclusion that the 2016 report did not establish that
12 Christians were barred from proselytizing. See Siewe v.
13 Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where there are
14 two permissible views of the evidence, the factfinder’s
15 choice between them cannot be clearly erroneous.” (internal
16 quotation marks omitted)). Accordingly, the agency
17 reasonably concluded that Zhu failed to show that his fear of
18 persecution for posts on WeChat is more than speculative.
19 See Jian Xing Huang, 421 F.3d at 129.
20 Second, Zhu did not establish a pattern or practice of
21 persecution of similarly situated individuals. He referred
22 to the arrest of a human rights activist who used WeChat;
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19-451 Zhu v. Barr BIA Douchy, IJ A206 580 554 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 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 9th day of June, two thousand twenty. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 10 Circuit Judges. 11 _____________________________________ 12 14 Petitioner, 15 16 v. 19-451 17 NAC 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jay Ho Lee, Jay Ho Lee Law 24 Offices LLC, New York, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Kiley Kane, 28 Senior Litigation Counsel; Deitz 29 P. Lefort, Trial Attorney, Office 30 of Immigration Litigation, United 31 1 States Department of Justice, 2 Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Sheng Zhu, a native and citizen of the
9 People’s Republic of China, seeks review of a February 7,
10 2019 decision of the BIA affirming a November 13, 2017
11 decision of an Immigration Judge (“IJ”) denying asylum,
12 withholding of removal, and relief under the Convention
13 Against Torture (“CAT”). In re Sheng Zhu, No. A206 580 554
14 (B.I.A. Feb. 7, 2019), aff’g No. A206 580 554 (Immig. Ct.
15 N.Y. City Nov. 13, 2017). We assume the parties’ familiarity
16 with the underlying facts and procedural history.
17 In lieu of filing a brief, the Government moves
18 for summary denial of Zhu’s petition for review. Rather than
19 determine if the petition is frivolous as required for summary
20 denial, Pillay v. INS, 45 F.3d 14, 16–17 (2d Cir. 1995), we
21 construe the Government’s motion as a brief and deny the
22 petition on the merits. Under the circumstances of this
23 case, we have reviewed both the IJ’s and BIA’s decisions “for
24 the sake of completeness.” Wangchuck v. Dep’t of Homeland 2 1 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The standards of
2 review are well established. See Y.C. v. Holder, 741 F.3d
3 324, 332 (2d Cir. 2013).
4 The agency did not err in finding that Zhu failed to meet
5 his burden of showing an objectively reasonable fear of future
6 persecution. Absent past persecution, an applicant may
7 prevail on an asylum claim by demonstrating that “he
8 subjectively fears future persecution and . . . that his fear
9 is objectively reasonable.” Ramsameachire v. Ashcroft, 357
10 F.3d 169, 178 (2d Cir. 2004). An applicant may make this
11 showing by establishing either “a reasonable possibility he
12 . . . would be singled out individually for persecution,” or
13 “a pattern or practice” of persecution of “persons similarly
14 situated” to him. 8 C.F.R. § 1208.13(b)(2)(iii)(A); see
15 also Y.C., 741 F.3d at 332; In re A-M-, 23 I. & N. Dec. 737,
16 741 (B.I.A. 2005) (defining a pattern or practice of
17 persecution as the “systemic or pervasive” persecution of a
18 group). Where the claim is based on activities undertaken
19 after the applicant’s arrival in the United States, this
20 requires “some showing that authorities in his country of
21 nationality are (1) aware of his activities or (2) likely to
22 become aware of his activities.” Hongsheng Leng v. Mukasey,
3 1 528 F.3d 135, 138 (2d Cir. 2008). A “fear may be well-founded
2 even if there is only a slight, though discernible, chance of
3 persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir.
4 2000) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431
5 (1987)). But a fear is not objectively reasonable if it
6 lacks “solid support” in the record and is merely “speculative
7 at best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d
8 Cir. 2005).
9 The agency reasonably concluded that Zhu’s fear was not
10 objectively reasonable. First, Zhu failed to establish that
11 the Chinese authorities were aware of his activities or would
12 likely become aware of them. He asserted that “it [was]
13 possible” that the Chinese government monitored his WeChat
14 activity and was aware of his proselytizing, due to the
15 Chinese government’s ban on proselytism. Certified
16 Administrative Record (“CAR”) at 97. However, the 2009 State
17 Department report reflects that proselytizing is not
18 completely banned, but rather permitted in registered places
19 of worship and private settings. The 2016 report provides
20 that the State Administration for Religious Affairs allows
21 family and friends to meet for home worship without
22 registering and, in a brief paragraph that appears to place
4 1 restrictions on Buddhists, states that public proselytizing
2 and “meeting in unregistered places of worship is not
3 permitted.” CAR at 127. The 2016 report provides both
4 that “[r]eligious regulations . . . vary by province” and
5 that there are continuing reports of repression throughout
6 China, including restrictions on “expressing religious
7 beliefs in public and in private.” CAR at 127, 129. Neither
8 report discusses incidents of persecution of Catholics or
9 other religious adherents for posts on social media. Based
10 on this evidence, we cannot find error in the agency’s
11 conclusion that the 2016 report did not establish that
12 Christians were barred from proselytizing. See Siewe v.
13 Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where there are
14 two permissible views of the evidence, the factfinder’s
15 choice between them cannot be clearly erroneous.” (internal
16 quotation marks omitted)). Accordingly, the agency
17 reasonably concluded that Zhu failed to show that his fear of
18 persecution for posts on WeChat is more than speculative.
19 See Jian Xing Huang, 421 F.3d at 129.
20 Second, Zhu did not establish a pattern or practice of
21 persecution of similarly situated individuals. He referred
22 to the arrest of a human rights activist who used WeChat;
5 1 however, the article he submitted did not elaborate on whether
2 the activist’s WeChat postings prompted the arrest and, more
3 significantly, Zhu is not a human rights activist and did not
4 show that the Chinese authorities would dedicate the same
5 attention to his activities. To the extent that Zhu fears
6 persecution because he would attend an unregistered church in
7 China, the record reflects that repression of religious
8 activities varies by province, and the evidence does not
9 establish a pattern or practice of persecution of church
10 members in Zhu’s native Fujian Province. See Jian Hui Shao
11 v. Mukasey, 546 F.3d 138, 149, 169–70 (2d Cir. 2008) (finding
12 no error in the agency’s requirement that an applicant
13 demonstrate a well-founded fear of persecution specific to
14 applicant’s region when persecutory acts in China vary). The
15 country-conditions evidence reflects that “[i]n some parts of
16 the country” the authorities did not interfere with
17 unregistered churches, while in other areas, such churches
18 were shut down. CAR at 143. The reports that Zhu submitted
19 did not mention restrictions on churches in Fujian.
20 Lastly, we deny Zhu’s request for remand for the agency
21 to consider a 2018 State Department report because new
22 evidence that was not submitted to the agency is not a basis
6 1 for remand. See 8 C.F.R. § 1003.2(c) (providing for motions
2 to reopen for consideration of new evidence before the
3 BIA); Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir.
4 2007). The appropriate course is for Zhu to file a motion
5 to reopen with the BIA. Xiao Xing Ni, 494 F.3d at 269.
6 In sum, Zhu did not meet his burden for asylum, and thus,
7 he “necessarily” failed to meet the higher standards for
8 withholding of removal and CAT relief. See Lecaj v. Holder,
9 616 F.3d 111, 119 (2d Cir. 2010).
10 For the foregoing reasons, the petition for review is
11 DENIED. All pending motions and applications are DENIED and
12 stays VACATED.
13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court