16-2012 Zhu v. Sessions BIA Vomacka, IJ A205 240 875
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 25th day of May, two thousand eighteen.
PRESENT: RALPH K. WINTER, ROSEMARY S. POOLER, GERARD E. LYNCH, Circuit Judges. _____________________________________
YIN ZHU, Petitioner,
v. 16-2012 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Igor G. Kuperman, Stamford, CT.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Dawn S. Conrad, Senior Litigation Counsel; Jeremy M. Bylund, 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 Yin Zhu, a native and citizen of the People’s
Republic of China, seeks review of a May 23, 2016, decision of
the BIA affirming a January 21, 2015, decision of an Immigration
Judge (“IJ”) denying Zhu’s application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Yin Zhu, No. A205 240 875 (B.I.A. May 23, 2016),
aff’g No. A205 240 875 (Immig. Ct. N.Y. City Jan. 21, 2015).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed the
IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S.
Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Accordingly,
we assume credibility and address only whether Zhu met his
burden of demonstrating a well-founded fear of future
persecution. Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir.
2005). The applicable standards of review are well established.
8 U.S.C. § 1252(b)(4)(B); Su Chun Hu v. Holder, 579 F.3d 155,
158 (2d Cir. 2009). 2 Zhu did not allege any past harm, so to obtain asylum he
had the burden to demonstrate a well-founded fear of future
persecution, which is a “subjective fear that is objectively
reasonable.” Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d
Cir. 2009) (internal quotation marks omitted); see also 8 U.S.C.
§ 1101(a)(42); 8 C.F.R. § 1208.13(b)(2); Y.C. v. Holder, 741
F.3d 324, 332 (2d Cir. 2013) (requiring asylum applicant to
“show a reasonable possibility of future persecution.”
(internal quotation marks omitted)). “An asylum applicant can
show a well-founded fear of future persecution in two ways:
(1) by demonstrating that he or she ‘would be singled out
individually for persecution’ if returned, or (2) by proving
the existence of a ‘pattern or practice in [the] . . . country
of nationality . . . of persecution of a group of persons
similarly situated to the applicant’ and establishing his or
her ‘own inclusion in, and identification with, such group.’”
Y.C., 741 F.3d at 332 (quoting 8 C.F.R. § 1208.13(b)(2)(iii)).
We conclude that the agency reasonably determined that Zhu
failed to meet his burden of proof. “In the absence of solid
support in the record . . . , [an applicant’s] fear is
speculative at best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125,
129 (2d Cir. 2005). The evidence that Zhu submitted – country 3 reports and letters from his mother and her neighbor – does not
provide “solid support” for his claim of persecution.
Zhu submitted reports on China, including the State
Department’s 2013 International Religious Freedom Report,
which documents mistreatment of Tibetan Buddhists in the Tibet
Autonomous Region (“TAR”) and connects that mistreatment to the
intersection of ethnicity (Tibetan) and religion (Tibetan
Buddhist). The report also states that individuals who
privately practice any unauthorized religion in small groups
are sometimes harassed and detained by government officials.
But none of this evidence provides solid support for Zhu’s claim
that the government persecutes people who are ethnically Han
and practice Tibetan Buddhism outside of the TAR. Jian Xing
Huang, 421 F.3d at 129.
Zhu also submitted two letters from his mother that detail
her own practice of Tibetan Buddhism, report that she was
detained for her religious activity, encourage Zhu to stay in
the United States, and warn Zhu that “because I am monitored
by the local Public Security Bureau, you are so involved in it.”
Additionally, Zhu submitted a letter from his mother’s neighbor
reporting that Zhu’s mother had been detained and warning Zhu:
“The Public Security Bureau knows that you are also a Tibetan 4 Buddhist. If you returned, you would be detained.” But the
agency reasonably gave those letters diminished weight: they
were unsworn, submitted by interested witnesses who were
unavailable for cross-examination, and styled as personal
letters to Zhu despite content — detailed background
information that Zhu already knew — suggesting that they had
been prepared for the removal proceedings. See Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding
that the weight accorded to an applicant’s evidence “lie[s]
largely within the discretion of the IJ” (internal quotation
marks omitted)); Y.C., 741 F.3d at 334 (upholding agency’s
determination that letter from relative in China was entitled
to limited weight because it was unsworn and submitted by an
interested witness). But even if the agency had afforded the
letters full weight, they contain no solid basis to conclude
that Zhu would be persecuted as opposed to merely harassed.
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.
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16-2012 Zhu v. Sessions BIA Vomacka, IJ A205 240 875
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 25th day of May, two thousand eighteen.
PRESENT: RALPH K. WINTER, ROSEMARY S. POOLER, GERARD E. LYNCH, Circuit Judges. _____________________________________
YIN ZHU, Petitioner,
v. 16-2012 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Igor G. Kuperman, Stamford, CT.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Dawn S. Conrad, Senior Litigation Counsel; Jeremy M. Bylund, 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 Yin Zhu, a native and citizen of the People’s
Republic of China, seeks review of a May 23, 2016, decision of
the BIA affirming a January 21, 2015, decision of an Immigration
Judge (“IJ”) denying Zhu’s application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Yin Zhu, No. A205 240 875 (B.I.A. May 23, 2016),
aff’g No. A205 240 875 (Immig. Ct. N.Y. City Jan. 21, 2015).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed the
IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S.
Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Accordingly,
we assume credibility and address only whether Zhu met his
burden of demonstrating a well-founded fear of future
persecution. Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir.
2005). The applicable standards of review are well established.
8 U.S.C. § 1252(b)(4)(B); Su Chun Hu v. Holder, 579 F.3d 155,
158 (2d Cir. 2009). 2 Zhu did not allege any past harm, so to obtain asylum he
had the burden to demonstrate a well-founded fear of future
persecution, which is a “subjective fear that is objectively
reasonable.” Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d
Cir. 2009) (internal quotation marks omitted); see also 8 U.S.C.
§ 1101(a)(42); 8 C.F.R. § 1208.13(b)(2); Y.C. v. Holder, 741
F.3d 324, 332 (2d Cir. 2013) (requiring asylum applicant to
“show a reasonable possibility of future persecution.”
(internal quotation marks omitted)). “An asylum applicant can
show a well-founded fear of future persecution in two ways:
(1) by demonstrating that he or she ‘would be singled out
individually for persecution’ if returned, or (2) by proving
the existence of a ‘pattern or practice in [the] . . . country
of nationality . . . of persecution of a group of persons
similarly situated to the applicant’ and establishing his or
her ‘own inclusion in, and identification with, such group.’”
Y.C., 741 F.3d at 332 (quoting 8 C.F.R. § 1208.13(b)(2)(iii)).
We conclude that the agency reasonably determined that Zhu
failed to meet his burden of proof. “In the absence of solid
support in the record . . . , [an applicant’s] fear is
speculative at best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125,
129 (2d Cir. 2005). The evidence that Zhu submitted – country 3 reports and letters from his mother and her neighbor – does not
provide “solid support” for his claim of persecution.
Zhu submitted reports on China, including the State
Department’s 2013 International Religious Freedom Report,
which documents mistreatment of Tibetan Buddhists in the Tibet
Autonomous Region (“TAR”) and connects that mistreatment to the
intersection of ethnicity (Tibetan) and religion (Tibetan
Buddhist). The report also states that individuals who
privately practice any unauthorized religion in small groups
are sometimes harassed and detained by government officials.
But none of this evidence provides solid support for Zhu’s claim
that the government persecutes people who are ethnically Han
and practice Tibetan Buddhism outside of the TAR. Jian Xing
Huang, 421 F.3d at 129.
Zhu also submitted two letters from his mother that detail
her own practice of Tibetan Buddhism, report that she was
detained for her religious activity, encourage Zhu to stay in
the United States, and warn Zhu that “because I am monitored
by the local Public Security Bureau, you are so involved in it.”
Additionally, Zhu submitted a letter from his mother’s neighbor
reporting that Zhu’s mother had been detained and warning Zhu:
“The Public Security Bureau knows that you are also a Tibetan 4 Buddhist. If you returned, you would be detained.” But the
agency reasonably gave those letters diminished weight: they
were unsworn, submitted by interested witnesses who were
unavailable for cross-examination, and styled as personal
letters to Zhu despite content — detailed background
information that Zhu already knew — suggesting that they had
been prepared for the removal proceedings. See Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding
that the weight accorded to an applicant’s evidence “lie[s]
largely within the discretion of the IJ” (internal quotation
marks omitted)); Y.C., 741 F.3d at 334 (upholding agency’s
determination that letter from relative in China was entitled
to limited weight because it was unsworn and submitted by an
interested witness). But even if the agency had afforded the
letters full weight, they contain no solid basis to conclude
that Zhu would be persecuted as opposed to merely harassed.
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.
2006) (persecution involves the “infliction of suffering or
harm” that goes beyond “mere harassment”).
The agency also did not err in concluding that Zhu failed
to establish a pattern or practice of persecution of Tibetan
Buddhists in China. Nothing in the record suggests that 5 Tibetan Buddhism is punished or restricted nationwide in a
manner that constitutes persecution. First, Zhu testified that
he generally worshiped in secret, but he also studied Tibetan
Buddhism at an institute in Sichuan province and cautiously
promoted Tibetan Buddhism in public without incident. Second,
the country reports reveal mistreatment of Tibetan Buddhists
in the TAR, but not in Zhu’s home province. Given the nationwide
variation and lack of evidence about persecution in Zhu’s home
province of Guizhou, the agency reasonably concluded that Zhu
failed to establish a nationwide pattern or practice of
persecution of Tibetan Buddhists in China or a pattern or
practice in Zhu’s home province. Cf. Jian Hui Shao v. Mukasey,
546 F.3d 138, 142, 149 (2d Cir. 2008) (finding no error in BIA’s
evidentiary framework that an applicant demonstrate that
enforcement of family planning policy is carried out in his or
her local area in a manner that would give rise to a well-founded
fear of persecution); see also Santoso v. Holder, 580 F.3d 110,
112 (2d Cir. 2009) (affirming agency’s finding of no pattern
or practice of persecution of Catholics in Indonesia where
evidence showed that religious violence was not nationwide and
that Catholics in many parts of the country were free to practice
their faith). 6 Accordingly, because the agency reasonably found that Zhu
failed to demonstrate an objectively reasonable fear of future
persecution, it did not err in denying asylum or in concluding
that Zhu necessarily failed to meet the higher burdens required
for withholding of removal and CAT relief. See Lecaj v. Holder,
616 F.3d 111, 119-20 (2d Cir. 2010).
For the foregoing reasons, the petition for review is
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk