Ming Feng Ye v. Holder , 496 F. App'x 100 ( 2012 )

11-3316-ag
Ye v. Holder
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
7 ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
8 FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
9 WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
10 CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
11 "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
12 PARTY NOT REPRESENTED BY COUNSEL.
13
14 At a stated term of the United States Court of Appeals
15 for the Second Circuit, held at the Daniel Patrick Moynihan
16 United States Courthouse, 500 Pearl Street, in the City of New
17 York, on the 11th day of September, two thousand twelve.
18
19 PRESENT: RICHARD C. WESLEY,
20 DENNY CHIN,
21 SUSAN L. CARNEY,
22 Circuit Judges.
23
24 - - - - - - - - - - - - - - - - - - - -x
25
26 MING FENG YE,
27 Petitioner,
28
29 -v.- 11-3316-ag
30
31 ERIC H. HOLDER, JR., UNITED STATES
32 ATTORNEY GENERAL,
33 Respondent.
34
35 - - - - - - - - - - - - - - - - - - - -x
36
37 FOR PETITIONER: Norman Kwai Wing Wong, New York, New
38 York.
39
40 FOR RESPONDENT: Tony West, Assistant Attorney General;
41 Keith I. McManus, Senior Litigation
42 Counsel; Jessica E. Sherman, Trial
43 Attorney, Office of Immigration
44 Litigation, United States Department of
45 Justice, Washington, D.C.
46
47 UPON DUE CONSIDERATION of this petition for review of a
48 Board of Immigration Appeals ("BIA") decision, it is hereby
49 ORDERED, ADJUDGED, AND DECREED that the petition for review is
50 DENIED.
1 Ming Feng Ye, a native and citizen of the People's
2 Republic of China, seeks review of a July 21, 2011, order of the
3 BIA, affirming the September 9, 2009, decision of Immigration
4 Judge ("IJ") Sandy K. Hom, which denied his application for
5 asylum, withholding of removal, and relief under the Convention
6 Against Torture ("CAT"). In re Ming Feng Ye, No. A094 938 704
7 (B.I.A. July 21, 2011), aff'g No. A094 938 704 (Immig. Ct. N.Y.
8 City Sept. 9, 2009). We assume the parties' familiarity with the
9 underlying facts and procedural history in this case.
10 I. Asylum, Withholding of Removal, and CAT Relief
11 Under the circumstances of this case, we review both
12 the IJ's and BIA's decisions. See Zaman v. Mukasey, 514 F.3d
13 233, 237 (2d Cir. 2008). The applicable standards of review are
14 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
15 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
16 A. Falun Gong Claim
17 The agency reasonably determined that Ye failed to
18 establish that he suffered past persecution, as Ye testified that
19 he was never arrested, detained, or otherwise physically
20 mistreated in China for having distributed Falun Gong flyers.
21 See Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985)
22 (defining persecution as "threat to the life or freedom of, or
23 the infliction of suffering or harm upon, those who differ in a
24 way regarded as offensive"); see also Ivanishvili v. U.S. Dep't
25 of Justice, 433 F.3d 332, 341 (2d Cir. 2006) (holding alleged
26 harm must be sufficiently severe, rising above "mere harassment,"
27 to constitute persecution).
28 The agency also reasonably found that Ye failed to
-2-
1 establish a well-founded fear of persecution because Ye did not
2 present any evidence indicating that Chinese authorities were, or
3 could become, aware that he had worked for an underground Falun
4 Gong organization and distributed flyers on its behalf, or that
5 Chinese authorities perceived him to be a practitioner of Falun
6 Gong. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.
7 2008).
8 B. Christianity Claim
9 We further find that the agency reasonably determined
10 that Ye failed to establish a pattern or practice of persecution
11 of Christians similarly situated to him, or to meet his burden in
12 demonstrating a well-founded fear of future persecution based on
13 a pattern or practice of persecution of house church members in
14 China. See Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007); In
15 re A--M--, 23 I. & N. Dec. 737, 741 (BIA 2005) (indicating a
16 pattern or practice of persecution of a group must be systemic,
17 pervasive, or organized).
18 Here, both the IJ and BIA expressly referenced the 2008
19 U.S. Department of State International Religious Freedom Report
20 in the record, which indicated that the Chinese government has
21 targeted Christian house church groups, but the degree of
22 government interference and harassment varied depending on the
23 house church group's size and the region in which it was located,
24 such that small, private groups encountered less governmental
25 interference. As the IJ noted, the country conditions evidence
26 did not establish a pattern or practice of persecution of members
27 of house churches in Ye's home province of Fujian. See Mufied,
28 508 F.3d at 91; In re A--M--, 23 I. & N. at 741. Additionally,
-3-
1 as the IJ observed, the country conditions evidence predominantly
2 reflected ongoing harassment of church leaders, pastoral
3 officials, and prominent Christian activists, and not laypersons,
4 such as Ye. Where the agency's determination that an individual
5 did not establish a pattern or practice of persecution is
6 supported by background materials, the agency has provided a
7 "sufficient basis" for its conclusion. See Santoso v. Holder,
8 580 F.3d 110, 111-12 n.1 (2d Cir. 2007).
9 Finally, the agency did not err in denying withholding
10 of removal and CAT relief, as those claims shared the same
11 factual predicate as Ye's asylum claim. See Paul v. Gonzales,
12 444 F.3d 148, 156 (2d Cir. 2006).
13 II. Due Process Claims
14 Ye failed to demonstrate that the IJ deprived him of a
15 "full and fair opportunity to present [his] claims," Burger v.
16 Gonzales, 498 F.3d 131, 134 (2d Cir. 2007), by denying his: (1)
17 request to change venue for the second time, from New York to
18 Indiana; (2) motion for a continuance; (3) attorney's request to
19 withdraw as counsel of record; and (4) attorney's request to
20 speak with Ye about continuing to represent him. The merits
21 hearing was scheduled in advance and Ye's attorney stated that he
22 had discussed the case with Ye before the hearing. Nothing in
23 the record suggests that the IJ prohibited Ye from fully
24 developing his testimony, ignored any of Ye's evidence, or made a
25 determination on issues for which Ye did not have notice or an
26 opportunity to be heard. See Xiao Ji Chen v. U.S. Dep't of
27 Justice, 471 F.3d 315, 336-37 n.17 (2d Cir. 2006) (presuming
28 agency "has taken into account all of the evidence before [it],
-4-
1 unless the record compellingly suggests otherwise"). Indeed,
2 Ye's minister was permitted to testify by telephone at the
3 hearing. Additionally, Ye was provided with a translator,
4 understood the IJ's decisions, and stated that he would prefer
5 representation by his attorney rather than proceeding on his own.
6 Finally, Ye failed to demonstrate that he was prejudiced by any
7 of the IJ's decisions at issue. See Garcia-Villeda v. Mukasey,
8 531 F.3d 141, 149 (2d Cir. 2008). Ye has not presented any
9 specific evidence indicating that, but for the IJ's denial of
10 venue change, he would have sustained his burden of demonstrating
11 his eligibility for relief. See Lovell v. INS, 52 F.3d 458, 460
12 (2d Cir. 1995).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of removal
15 that the Court previously granted in this petition is VACATED,
16 and any pending motion for a stay of removal in this petition is
17 DENIED as moot. Any pending request for oral argument in this
18 petition is DENIED in accordance with Federal Rule of Appellate
19 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
20
21
22 FOR THE COURT:
23 CATHERINE O'HAGAN WOLFE, CLERK
24
25
-5-