Yue Wen Zhong v. Holder ( 2012 )

11-338-ag
Zhong v. Holder
BIA
Weisel, IJ
A089 249 995
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 22nd day of May, two thousand twelve.
PRESENT:
ROSEMARY S. POOLER,
GERARD E. LYNCH,
Circuit Judges.1
______________________________________
YUE WEN ZHONG,
Petitioner,
11-338-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Dehai Zhang, Flushing, New York.
1
The Honorable Roger J. Miner, originally a member
of the panel, died on February 18, 2012. The two
remaining members of the panel, who are in agreement,
have determined the matter. See 28 U.S.C. § 46(d); 2d
Cir. IOP E(b); United States v. Desimone, 140 F.3d 457(2d Cir. 1998).
FOR RESPONDENT: Tony West, Assistant Attorney
General; Shelley R. Goad, Assistant
Director; Carmel A. Morgan, Trial
Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner, Yue Wen Zhong, a native and citizen of the
People’s Republic of China, seeks review of a December 29,
2010, decision of the BIA affirming the January 13, 2009,
decision of Immigration Judge (“IJ”) Robert Weisel denying
his application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Yue Wen Zhong, No. A089 249 995 (B.I.A. Dec. 29, 2010),
aff’g No. A089 249 995 (Immig. Ct. N.Y. City Jan. 13,
2009). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
The IJ found that Zhong’s asylum claim was untimely
and, therefore, considered only his eligibility for
withholding of removal and CAT relief. The BIA, however,
assumed for the purposes of its decision that Zhong had
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established changed circumstances and proceeded to address
the merits of all three claims. Accordingly, we have
reviewed only the decision of the BIA. See Shi Jie Ge v.
Holder, 588 F.3d 90, 93 (2d Cir. 2009). We review the
agency's factual findings under the substantial evidence
standard, which requires us to treat those findings as
conclusive unless “any reasonable adjudicator would be
compelled to conclude to the contrary.” Su Chun Hu v.
Holder, 579 F.3d 155, 158 (2d Cir. 2009).
To establish eligibility for asylum based on future
persecution, an applicant must demonstrate that he posses a
subjective fear that he will be persecuted if returned to
his country of origin and that this fear is objectively
reasonable. See Ramsameachire v. Ashcroft, 357 F.3d 169,
178 (2d Cir. 2004). In this case, the agency reasonably
concluded that Zhong failed to establish that his fear of
persecution based on his membership in the China Democracy
Party (“CDP”) USA Headquarters was objectively well founded.
Zhong has put forth no evidence to establish that Chinese
nationals who participate in anti-government political
activity while abroad are regularly persecuted upon their
return to that country. Although several articles in the
3
record reported interrogations and detentions of prominent
Chinese nationals who published hundreds of anti-Communist
articles on overseas websites, the record does not compel
the conclusion that Zhong, who published only four articles
from the United States, would be subjected to similar
treatment if he returned to China.
Nor did the agency err in finding that Zhong did not
proffer sufficient proof that the Chinese government would
discover his CDP activities. See Hongsheng Leng v. Mukasey,
528 F.3d 135, 143 (2d Cir. 2008) (holding that an applicant
seeking relief based on future harm must make some showing
that the government is aware or is likely to become aware of
his disfavored belief or characteristic). Although Zhong
argues that the Chinese government would have discovered the
anti-Communist articles that he published on the internet,
that claim is speculative. See Jian Xing Huang v. INS, 421
F.3d 125, 129 (2d Cir. 2005) (holding that a fear is not
objectively reasonable if it lacks “solid support” in the
record).2 Moreover, contrary to Zhong’s argument, the
2
Although Zhong cites a 2007 State Department report
indicating that “the Chinese government monitors the
political activities of students or exchange scholars
living abroad,” that report is not part of the
administrative record, and we may not consider it in our
review. See 8 U.S.C. § 1252(b)(4)(A) (limiting the
4
agency did not err in giving diminished weight to his wife’s
unsworn and uncross-examined statements that police came to
the family’s home in China looking for her husband. See
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d
Cir. 2006) (the weight to be accorded to documentary
evidence lies largely within the agency’s discretion).
Because Zhong’s claims for withholding of removal and
CAT relief were based on the same factual predicate but are
subject to a higher burden of proof, it follows a fortiori
that the agency did not err in denying those forms of relief
as well. See Ramsameachire, 357 F.3d at 168.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, Zhong’s pending
motion for a stay of removal is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
Court’s review of a petition for review to the
administrative record on which the order of removal is
based).
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