Shan Ze Zhang v. Holder , 443 F. App'x 609 ( 2011 )

11-32-ag
Zhang v. Holder
BIA
Abrams, IJ
A099 930 807
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 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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 25th day of October, two thousand eleven.
5
6 PRESENT:
7 ROGER J. MINER,
8 ROBERT D. SACK,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 SHAN ZE ZHANG,
14 Petitioner,
15
16 v. 11-32-ag
17 NAC
18 ERIC H. HOLDER JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Ke-en Wang, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Civil Division; Richard M.
27 Evans, Assistant Director, Office of
28 Immigration Litigation; Ann Carroll
29 Varnon, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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
4 is DENIED.
5 Shan Ze Zhang, a native and citizen of the People’s
6 Republic of China, seeks review of a December 16, 2010,
7 order of the BIA, affirming the September 18, 2008, decision
8 of Immigration Judge (“IJ”) Steven R. Abrams, which denied
9 Zhang’s application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Shan Ze Zhang, No. A099 930 807 (B.I.A. Dec. 16, 2010),
12 aff’g No. A099 930 807 (Immigr. Ct. N.Y. City Sept. 18,
13 2008). We assume the parties’ familiarity with the
14 underlying facts and procedural history of this case.
15 We have reviewed the IJ’s decision as modified by the
16 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
17 520, 522 (2d Cir. 2005). The applicable standards of review
18 are well-established. See 8 U.S.C. § 1252(b)(4)(B) (2006);
19 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 Here, the agency did not err in finding that Zhang
21 failed to establish either that authorities in China are
22 aware or likely to become aware of his China Democracy Party
23 (“CDP”) activities in the United States, and Zhang thus
24 failed to show that his fear of future persecution is
2
1 objectively well-founded. See Hongsheng Leng v. Mukasey,
2 528 F.3d 135, 143 (2d Cir. 2008). First, the agency
3 reasonably found that Zhang failed to show that articles he
4 wrote for the CDP website had attracted the attention of the
5 Chinese authorities or were likely to be published in China,
6 as Zhang testified that he never sent his articles to China,
7 did not know if his articles ever appeared in China, did not
8 know whether the webpage on which his articles were posted
9 was viewed by anyone outside the United States, had never
10 received any feedback or comments on his article indicating
11 whether anyone agrees or disagrees with his views, had never
12 responded or contributed to anyone else’s political blogs or
13 postings, and had never participated in any online political
14 discussion forums. See id.
15 The IJ further reasonably found that although Zhang
16 appeared in several pictures posted on the CDP website, he
17 had not established a reasonable likelihood that the Chinese
18 government could identify him by name or by his position in
19 the CDP, as he testified that the caption beneath the
20 photographs only contained the date on which they were taken
21 and no other identifying marker. See id.
22 Although Zhang argues that because his articles may be
23 obtained via the Internet he has sustained his burden of
24 showing a reasonable possibility that the Chinese government
3
1 will become aware of his political activities, we are not
2 persuaded that the record compels this conclusion. See
3 Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where
4 there are two permissible views of the evidence, the
5 factfinder’s choice between them cannot be clearly
6 erroneous.” (internal quotation marks omitted)).
7 Zhang further argues that the letter that he received
8 from his wife, stating that someone had alerted the Chinese
9 authorities about his involvement with the CDP, is proof
10 that the authorities are aware of his membership in the CDP
11 and his pro-democracy activities. However, the agency did
12 not err in declining to accord this unsworn letter
13 significant weight. See Xiao Ji Chen v. U.S. Dep’t of
14 Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding that the
15 weight afforded to the applicant’s evidence in immigration
16 proceedings lies largely within the discretion of the
17 agency).
18 In addition, the agency reasonably found that Zhang did
19 not demonstrate that the Chinese government targeted
20 individuals upon their return to China for having
21 participated in CDP activities in the United States, as the
22 evidence he presented either pertained to individuals who
4
1 engaged in activities within China or did not show the
2 reason for the individual’s alleged arrest. See also Jian
3 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (stating
4 that an applicant’s well-founded fear claim was “speculative
5 at best” when he failed to present “solid support” that he
6 would be subject to persecution).
7 Because Zhang is unable to establish his eligibility
8 for asylum, his applications for withholding of removal and
9 CAT relief also fail because they are based on the same
10 factual predicate. See Xue Hong Yang v. U.S. Dep’t of
11 Justice, 426 F.3d 520, 523 (2d Cir. 2005).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2) and Second
19 Circuit Local Rule 34(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23
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