Jiayang Xu v. Sessions , 710 F. App'x 474 ( 2018 )

16-412
Xu v. Sessions
BIA
Christensen, IJ
A205 436 888
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 3rd day of January, two thousand eighteen.
5
6 PRESENT: JOHN M. WALKER, JR.,
7 REENA RAGGI,
8 CHRISTOPHER F. DRONEY,
9 Circuit Judges.
10 _____________________________________
11
12 JIAYANG XU,
13 Petitioner,
14
15 v. 16-412
16 NAC
17 JEFFERSON B. SESSIONS III,
18 UNITED STATES ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONER: Zhidong Wang, Wang, Leonard &
23 Condon, Chicago, Illinois.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Cindy
27 Ferrier, Assistant Director; Tracie
28 N. Jones, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Jiayang Xu, a native and citizen of the People’s
6 Republic of China, seeks review of a January 19, 2016 decision
7 of the BIA affirming an August 1, 2014 decision of an Immigration
8 Judge (“IJ”) denying Xu’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). See In re Jiayang Xu, No. A205 436 888 (B.I.A. Jan.
11 19, 2016), aff’g No. A205 436 888 (Immig. Ct. N.Y.C. Aug. 1,
12 2014). Where, as here, the BIA does not expressly “adopt” the
13 IJ’s decision, but closely tracks its reasoning, we review both
14 the IJ’s and BIA’s opinions “for the sake of completeness.”
15 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
16 2006), applying well-established standards of review, see 8
17 U.S.C. § 1252(b)(4)(B); Su Chun Hu v. Holder, 579 F.3d 155, 158
18 (2d Cir. 2009). We assume the parties’ familiarity with the
19 underlying facts and procedural history of this case.
20 Absent past persecution, an alien may establish
21 eligibility for asylum by demonstrating a well-founded fear of
22 future persecution, which is a “subjective fear that is
23 objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552 F.3d
2
1 277, 284 (2d Cir. 2009) (internal quotation marks omitted); see
2 also 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b)(2). “An
3 asylum applicant can show a well-founded fear of future
4 persecution in two ways: (1) by demonstrating that he or she
5 ‘would be singled out individually for persecution’ if
6 returned, or (2) by proving the existence of a ‘pattern or
7 practice in [the] . . . country of nationality . . . of
8 persecution of a group of persons similarly situated to the
9 applicant’ and establishing his or her ‘own inclusion in, and
10 identification with, such group.’” Y.C. v. Holder, 741 F.3d
11 324, 332 (2d Cir. 2013) (quoting 8 C.F.R.
12 § 1208.13(b)(2)(iii)). To do this, “an alien must make some
13 showing that authorities in [her] country of nationality are
14 either aware of [her] activities or likely to become aware of
15 [her] activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135,
16 143 (2d Cir. 2008).
17 The agency here reasonably determined that Xu failed to
18 show a reasonable possibility that she would be singled out
19 individually for persecution. Although Xu pointed to three
20 instances in which she proselytized publicly and approximately
21 fifteen articles about religion that she published to a blog,
22 her claim that the Chinese government is aware of these
23 activities is purely speculative. See Jian Xing Huang v. U.S.
3
1 INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that “[i]n the
2 absence of solid support in the record,” fear of persecution
3 is “speculative at best” and not objectively reasonable); Y.C.
4 v. Holder, 741 F.3d at 334 (rejecting premise that “Chinese
5 government is aware of every anti-Communist or pro-democracy
6 piece of commentary published online”).
7 Regarding her prospective practice, Xu testified that she
8 would worship at an unauthorized church in China and
9 proselytize. In essence, she alleged that the Chinese
10 authorities would become aware of her future activities in China
11 and persecute her for them because there is a pattern or practice
12 of such persecution. But the agency reasoned that she did not
13 establish any pattern or practice of persecution. The State
14 Department report, of which the agency took administrative
15 notice, reflects that tens of millions of unregistered
16 Christians worship in China, so it is unlikely that Chinese
17 officials would discover Xu’s practice and single her out for
18 harm. See Jian Xing Huang v. U.S. INS, 421 F.3d at 129.
19 Although Xu argues that the IJ failed to consider whether the
20 government was more likely to discover her practice because she
21 would proselytize, the IJ considered that fact, but found that
22 the country conditions evidence did not support Xu’s claim.
4
1 We identify no error in this finding. To establish a
2 pattern or practice of persecution against a particular group,
3 an applicant must demonstrate that the harm to that group is
4 “systemic or pervasive.” In re A-M-, 23 I. & N. Dec. 737, 741
5 (B.I.A. 2005); see Mufied v. Mukasey, 508 F.3d 88, 92-93 (2d
6 Cir. 2007). Here, Xu testified that she did not personally know
7 anyone who was persecuted in China, and the State Department’s
8 2012 International Religious Freedom Report stated that in some
9 parts of China “local authorities tacitly approved of . . . the
10 activities of unregistered religious groups or did not
11 interfere with [them].” SPA 1. Given the nationwide
12 variation in and lack of evidence of persecution in Xu’s home
13 province of Liaoning, the agency reasonably concluded that Xu
14 failed to establish a pattern or practice of persecution of
15 Christians in her region of China. See Santoso v. Holder, 580
16 F.3d 110, 112 (2d Cir. 2009) (affirming agency determination
17 that petitioner unlikely to experience future persecution as
18 Catholic where evidence suggested that persecution was
19 “occurring on a very localized basis and was not countrywide”);
20 cf. Jian Hui Shao v. Mukasey, 546 F.3d 138, 142, 149 (2d Cir.
21 2008) (identifying no error in BIA framework requiring evidence
22 of local enforcement of family-planning policy, given regional
23 variations in enforcement).
5
1 Accordingly, because the agency reasonably found that Xu
2 failed to demonstrate a well-founded fear of persecution, it
3 did not err in denying asylum or in concluding that she
4 necessarily failed to meet the higher burden required for
5 withholding of removal or CAT relief. See Lecaj v. Holder, 616
6 F.3d 111, 119-20 (2d Cir. 2010).
7 For the foregoing reasons, the petition for review is
8 DENIED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk of Court
6