Tao v. Sessions ( 2018 )

16-3015
Tao v. Sessions
BIA
Laforest, IJ
A087 601 002
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 23rd day of February, two thousand eighteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 LI TAO,
14 Petitioner,
15
16 v. 16-3015
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Mike P. Gao, Flushing, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Nancy E. Friedman,
27 Senior Litigation Counsel; Sharon M.
28 Clay, 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 Li Tao, a native and citizen of the People’s
6 Republic of China, seeks review of an August 9, 2016, decision
7 of the BIA affirming an April 20, 2015, decision of an
8 Immigration Judge (“IJ”) denying Tao’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Li Tao, No. A087 601 002 (B.I.A. Aug.
11 9, 2016), aff’g No. A087 601 002 (Immig. Ct. N.Y. City April
12 20, 2015). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 IJ’s and BIA’s opinions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). The applicable standards of review are well
18 established. 8 U.S.C. § 1252(b)(4)(B); Su Chun Hu v. Holder,
19 579 F.3d 155, 158 (2d Cir. 2009).
20 Because Tao alleged only a fear of future persecution on
21 account of her membership in the China Democracy Party (“CDP”)
22 in the United States, she had the burden to show a well-founded
23 fear of future persecution, which is a “subjective fear that
2
1 is objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552
2 F.3d 277, 284 (2d Cir. 2009) (internal quotation marks omitted);
3 see also 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b)(2); Y.C.
4 v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“For an asylum
5 claim, the applicant must show a reasonable possibility of
6 future persecution.” (internal quotation marks omitted)). “An
7 asylum applicant can show a well-founded fear of future
8 persecution in two ways: (1) by demonstrating that he or she
9 ‘would be singled out individually for persecution’ if
10 returned, or (2) by proving the existence of a ‘pattern or
11 practice in [the] . . . country of nationality . . . of
12 persecution of a group of persons similarly situated to the
13 applicant’ and establishing his or her ‘own inclusion in, and
14 identification with, such group.’” Y.C., 741 F.3d at 332
15 (quoting 8 C.F.R. § 1208.13(b)(2)(iii)).
16 First, we conclude that the agency did not err in
17 determining that Tao failed to demonstrate an objectively
18 reasonable possibility that she would be singled out
19 individually for persecution. “[A]n alien must make some
20 showing that authorities in his or her country of nationality
21 are either aware of his or her activities or likely to become
22 aware of his or her activities.” Y.C., 741 F.3d at 332
23 (internal citation, quotation marks, and brackets omitted).
3
1 Tao argues that online publication of her four pro-democracy
2 articles and photographs of protests she attended established
3 the Chinese government’s likely awareness of her U.S. political
4 activities, particularly in light of her own testimony and
5 testimony from a witness that that the government would discover
6 her activities. Although the agency found Tao and her witness
7 credible, that only satisfied the subjective prong of the test.
8 The agency then reasonably concluded that Tao’s fear of
9 persecution was speculative because it was unlikely that the
10 Chinese government would discover her four articles and protest
11 photographs. See Jian Xing Huang v. U.S INS, 421 F.3d 125, 129
12 (2d Cir. 2005) (stating that in “absence of solid support in
13 the record” a fear of persecution is not objectively reasonable
14 and is “speculative at best.”); Y.C., 741 F.3d at 334, 336-37
15 (finding insufficient grounds for awareness based on either
16 publication of one article or applicant’s member page, name,
17 and photograph on CDP’s website).
18 Second, we conclude that the agency did not err in
19 determining that Tao failed to establish a pattern or practice
20 of persecution of similarly-situated individuals—namely,
21 low-level CDP members who joined the CDP in the United States.
22 To establish a pattern or practice of persecution of a
23 particular group, an applicant must demonstrate that the harm
4
1 to that group is “systemic or pervasive.” In re A-M-, 23 I.
2 & N. Dec. 737, 741 (B.I.A. 2005); see Mufied v. Mukasey, 508
3 F.3d 88, 92-93 (2d Cir. 2007). Although Tao and her witness
4 identified a few arrests of low-level CDP members who had been
5 active in the United States, the agency reasonably concluded
6 that the isolated incidents did not amount to a pattern or
7 practice. See Santoso v. Holder, 580 F.3 110, 111-12 (2d Cir.
8 2009) (finding no error in agency’s denial of pattern or
9 practice claim where persecution was “sporadic” and
10 “localized”).
11 Further, as the agency reasoned, the country conditions
12 evidence reflects that high-profile CDP leaders and recruiters
13 have been persecuted for their pro-democracy activities in
14 China, but does not identify persecution of low-level CDP
15 members, like Tao, whose activities occurred only in the United
16 States. The agency therefore did not err in concluding that
17 Tao failed to show a pattern or practice of persecution of
18 similarly-situated individuals. See Y.C., 741 F.3d at 334-35
19 (affirming agency’s denial of pattern or practice claim by
20 low-level Chinese Alliance for Democracy member where evidence
21 showed persecution of prominent leaders of pro-democracy
22 movements outside of China and political dissidents within
23 China). As the agency concluded, Tao failed to demonstrate an
5
1 objectively reasonable fear of persecution. See id. Thus,
2 the agency did not err in denying asylum or in concluding that
3 Tao necessarily failed to meet the higher burdens for
4 withholding of removal and CAT relief. See Lecaj v. Holder,
5 616 F.3d 111, 119-20 (2d Cir. 2010).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of removal
8 that the Court previously granted in this petition is VACATED,
9 and any pending motion for a stay of removal in this petition
10 is DISMISSED as moot. Any pending request for oral argument
11 in this petition is DENIED in accordance with Federal Rule of
12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
13 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
6