Min Jiang v. Lynch , 637 F. App'x 652 ( 2016 )

14-2372
Jiang v. Lynch
BIA
Christensen, IJ
A077 571 408
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 5th day of February, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 MIN JIANG,
14 Petitioner,
15
16 v. 14-2372
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jay Ho Lee, New York, New York.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Carl
27 McIntyre, Assistant Director; Nancy
28 E. Friedman, Senior Litigation
1 Counsel, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Min Jiang, a native and citizen of the People’s
11 Republic of China, seeks review of a June 6, 2014, decision of
12 the BIA affirming an August 30, 2012, decision of an Immigration
13 Judge (“IJ”) denying Jiang’s application for asylum,
14 withholding of removal, and relief under the Convention Against
15 Torture (“CAT”). In re Min Jiang, No. A077 571 408 (B.I.A. June
16 6, 2014), aff’g No. A077 571 408 (Immig. Ct. N.Y. City Aug. 30,
17 2012). We assume the parties’ familiarity with the underlying
18 facts and procedural history in this case.
19 We have reviewed both the IJ’s and the BIA’s opinions “for
20 the sake of completeness.” Wangchuck v. Dep’t of Homeland
21 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
22 standards of review are well established. 8 U.S.C.
2
1 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
2 Cir. 2009).
3 Absent past persecution, an applicant may establish
4 eligibility for asylum by demonstrating a well-founded fear of
5 future persecution, 8 C.F.R. § 1208.13(b)(2), which must be
6 both subjectively credible and objectively reasonable,
7 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
8 To establish a well-founded fear, an applicant must show either
9 a reasonable possibility that she would be singled out for
10 persecution or that the country of removal has a pattern or
11 practice of persecuting individuals similarly situated to her.
12 8 C.F.R. § 1208.13(b)(2)(iii). “[The] alien must make some
13 showing that authorities in h[er] country of nationality are
14 either aware of h[er] activities or likely to become aware of
15 h[er] activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135,
16 143 (2d Cir. 2008).
17 The agency did not err in finding that Jiang failed to
18 establish a well-founded fear of persecution on account of her
19 religion. As an initial matter, contrary to Jiang’s
20 contention, the BIA did not err in reviewing for clear error
21 the IJ’s factual findings underlying his well-founded fear
3
1 determination. See Hui Lin Huang v. Holder, 677 F.3d 130,
2 134-35 (2d Cir. 2012); see also In re Z-Z-O-, 26 I. & N. Dec.
3 586, 590 (BIA 2015). And, although the BIA failed to recognize
4 the IJ’s positive credibility determination, that error was
5 harmless given that it assumed Jiang’s credibility for purposes
6 of her appeal. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
7 F.3d 315, 339 (2d Cir. 2006).
8 The agency did not err in determining that Jiang failed to
9 establish a pattern or practice of persecution of similarly
10 situated individuals such that officials are likely to become
11 aware of her religious practice and persecute her on that
12 account. See Hongsheng Leng, 528 F.3d at 143. As the IJ found,
13 the country conditions evidence in the record established that
14 between fifty and seventy million Christians practice in
15 unregistered churches in China, and that in some areas their
16 activities, including proselytism, are tolerated without
17 interference. Therefore, despite evidence of sporadic
18 mistreatment of religious practitioners, Jiang failed to
19 demonstrate “systemic or pervasive” persecution of similarly
20 situated Christians sufficient to demonstrate a pattern or
21 practice of persecution in China. In re A-M-, 23 I. & N. Dec.
4
1 737, 741 (B.I.A. 2005); see also 8 C.F.R. § 1208.13(b)(2)(iii);
2 Santoso v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009)
3 (denying petition where agency considered background materials
4 and rejected pattern or practice claim).
5 The agency also reasonably found that Jiang failed to
6 establish an objectively reasonable fear of being singled out
7 for persecution. Jiang did not assert that Chinese officials
8 are aware of her religious practice. And, given the tens of
9 millions of unregistered Christian practitioners in China, she
10 did not demonstrate that Chinese officials are likely to
11 discover her religious activities, a showing required to
12 establish an objectively reasonable fear. See Hongsheng Leng,
13 528 F.3d at 143.
14 Accordingly, because the agency reasonably found that
15 Jiang failed to demonstrate a well-founded fear of persecution,
16 it did not err in denying asylum, withholding of removal, and
17 CAT relief because all three claims were based on the same
18 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57
19 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
5
1 that the Court previously granted in this petition is VACATED,
2 and any pending motion for a stay of removal in this petition
3 is DISMISSED as moot. Any pending request for oral argument
4 in this petition is DENIED in accordance with Federal Rule of
5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
6 34.1(b).
7 FOR THE COURT:
8 Catherine O=Hagan Wolfe, Clerk
6