Jin Zou v. Sessions , 703 F. App'x 41 ( 2017 )

16-3202
Zou v. Sessions
BIA
Van Wyke, IJ
A089 167 620
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 16th day of November, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 JIN ZOU,
14 Petitioner,
15
16 v. 16-3202
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhou Wang, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Julie M. Iversen,
27 Senior Litigation Counsel; Kathryn
28 M. McKinney, Attorney; Lindsay G.
29 Donahue, Law Clerk, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Jin Zou, a native and citizen of the People’s
6 Republic of China, seeks review of an August 31, 2016, decision
7 of the BIA affirming an April 23, 2015, decision of an
8 Immigration Judge (“IJ”) denying Zou’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Jin Zou, No. A 089 167 620 (B.I.A. Aug.
11 31, 2016), aff’g No. A 089 167 620 (Immig. Ct. N.Y. City Apr. 23,
12 2015). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 In lieu of filing a brief, the Government moves for summary
15 denial of Zou’s petition for review. Summary denial is
16 warranted only if a petition is frivolous, Pillay v. INS, 45
17 F.3d 14, 17 (2d Cir. 1995), and Zou has filed his merits brief.
18 Accordingly, we treat the Government’s motion as a response to
19 that brief, and deny the petition.
20 I. Adverse Credibility Determination
21 Under the circumstances of this case, we have reviewed the
22 IJ’s decision as modified by the BIA and consider only whether
23 the factual findings that the BIA relied on provide substantial
2
1 evidence for the adverse credibility determination. See Xiu
2 Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008)
3 (substantial evidence review); Xue Hong Yang v. U.S. Dep’t of
4 Justice, 426 F.3d 520, 522 (2d Cir. 2005) (reviewing IJ’s
5 decision as modified by BIA).
6 Zou raises arguments identical to those in his brief to the
7 BIA. As a result, he challenges findings made by the IJ that
8 were not relied on by the BIA and that are no longer part of
9 the agency decision. See Xue Hong Yang, 426 F.3d at 522. In
10 addition, by failing to challenge any of the four grounds the
11 BIA relied on in upholding the adverse credibility
12 determination, he has waived any challenge to them. See Shunfu
13 Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008) (petitioner
14 waived challenge to grounds for adverse credibility ruling that
15 were not raised in brief); see also Yueqing Zhang v. Gonzales,
16 426 F.3d 540, 545 n.7 (2d Cir. 2005) (providing that issues not
17 raised in an opening brief are waived). Accordingly, Zou has
18 waived any challenge to the adverse credibility determination
19 and we reach the merits only as to his fear of future persecution
20 based on his practice of Christianity in the United States.
21 II. Well-Founded Fear of Persecution
22 The agency accepted that Zou practices Christianity in the
23 United States. To establish a well-founded fear of persecution
3
1 in the absence of past persecution, Zou was required to show
2 an objectively reasonable fear of future persecution.
3 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
4 Because his fear would be based solely on activities in the
5 United States, Zou was required to “make some showing that
6 authorities in his country of nationality are (1) aware of his
7 activities or (2) likely to become aware of his activities.”
8 Hongsheng Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008).
9 The objective component can be satisfied either (1) by
10 establishing a reasonable possibility that he “would be singled
11 out individually for persecution” or (2) by demonstrating “a
12 pattern or practice . . . of persecution of a group of persons
13 similarly situated to [him].” Hongsheng Leng, 528 F.3d 135 at
14 142 (quotation marks and citation omitted); see 8 C.F.R.
15 § 1208.13(b)(2)(iii). A pattern or practice of persecution is
16 the “systemic or pervasive” persecution of a group. In re A-M-,
17 23 I. & N. Dec. 737, 741 (B.I.A. 2005); see Mufied v. Mukasey,
18 508 F.3d 88, 92-93 (2d Cir. 2007). Given that the country
19 conditions evidence showed that only segments of the Christian
20 population are targeted for arrest and detention and the absence
21 of any reports of arrest in Zou’s home province of Fujian, the
22 agency reasonably concluded that he did not establish that the
23 Chinese government would become aware of his Christianity or
4
1 target him on this basis. See Shi Jie Ge v. Holder, 588 F.3d
2 90, 95-96 (2d Cir. 2009).
3 III. Motion to Remand
4 We review the BIA’s denial of a motion to remand for abuse
5 of discretion, and review the BIA’s conclusions regarding
6 country conditions for substantial evidence. See Li Yong Cao
7 v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005); Jian
8 Hui Shao v. Mukasey, 546 F.3d 138, 157 (2d Cir. 2008). “An abuse
9 of discretion may be found in those circumstances where the
10 Board's decision provides no rational explanation,
11 inexplicably departs from established policies . . . is devoid
12 of any reasoning, or contains only summary or conclusory
13 statements . . . that is to say, where the Board has acted in
14 an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t
15 of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (citations omitted).
16 The BIA erred in concluding that the State Department’s
17 2014 International Religious Freedom report was available at
18 the time of Zou’s February 2015 hearing because it was not
19 published until October 2015. However, the BIA reasonably
20 concluded that the new reports would not change the outcome of
21 Zou’s case. Zou does not cite to any information in either
22 report that would alter the agency’s conclusion. The 2014
23 report does not reflect any incidents of arrest or harassment
5
1 of Christians in Zou’s home province or a significant increase
2 in the number of Christians arrested throughout China. See
3 Jian Hui Shao, 546 F.3d at 165 (upholding BIA’s requirement that
4 applicant demonstrate that officials in his local area enforce
5 a government policy when evidence demonstrates local variations
6 in enforcement of that policy). The second report merely
7 incorporates the first by reference and provided no independent
8 basis for remand.
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, the Government’s
11 motion for summary denial is DENIED as moot. Any pending
12 request for oral argument in this petition is DENIED in
13 accordance with Federal Rule of Appellate Procedure 34(a)(2),
14 and Second Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
6