Lian Hua Zheng v. Lynch ( 2016 )

14-2822
Zheng v. Lynch
BIA
Nelson, IJ
A088 782 838
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 4th day of April, two thousand sixteen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 LIAN HUA ZHENG,
14 Petitioner,
15
16 v. 14-2822
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Louis H. Klein, The Kasen Law Firm,
24 PLLC, Flushing, NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Cindy
28 S. Ferrier, Assistant Director;
29 Timothy G. Hayes, Attorney, Office
30 of 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 is
4 DENIED.
5 Lian Hua Zheng, a native and citizen of the People’s
6 Republic of China, seeks review of a July 18, 2014, decision
7 of the BIA affirming the July 16, 2013, decision of an
8 Immigration Judge (“IJ”), denying her asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Lian Hua Zheng, No. A088 782 838 (B.I.A. July
11 18, 2014), aff’g No. A088 782 838 (Immig. Ct. N.Y. City July
12 16, 2013). 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 the IJ’s and the 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 I. Religion Claim
21 The agency may, “[c]onsidering the totality of the
22 circumstances,” base a credibility finding on inconsistencies
23 in an asylum applicant’s statements and other record evidence
2
1 “without regard to whether” they go “to the heart of the
2 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
3 Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008).
4 Substantial evidence supports the agency’s determination that
5 Zheng’s claim of religious persecution was not credible.
6 The agency reasonably relied on an inconsistency between
7 Zheng’s hearing testimony and her asylum application regarding
8 whether she was detained and beaten in China for assisting
9 illegal North Korean refugees and for attending an underground
10 Christian church in China, or whether she was arrested solely
11 based on her assistance to refugees. See Xiu Xia Lin, 534 F.3d
12 at 166-67 & n.3. The agency reasonably also relied on Zheng’s
13 failure to corroborate her claim. See Biao Yang v. Gonzales,
14 496 F.3d 268, 273 (2d Cir. 2007). None of Zheng’s corroborating
15 evidence provided that her arrest was related to her involvement
16 in an underground church. Given the significant inconsistency
17 and lack of corroborating evidence, substantial evidence
18 supports the agency’s determination that Zheng was not credible
19 as to her claim of past persecution based on her practice of
20 Christianity. See Xiu Xia Lin, 534 F.3d at 165-66.
21 Absent past persecution, an alien may establish
22 eligibility for asylum by demonstrating a well-founded fear of
23 future persecution, 8 C.F.R. § 1208.13(b)(2), which must be both
3
1 subjectively credible and objectively reasonable,
2 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
3 To establish a well-founded fear, an applicant must show either
4 a reasonable possibility that she would be singled out for
5 persecution or that the country of removal has a pattern or
6 practice of persecuting individuals similarly situated to her.
7 8 C.F.R. § 1208.13(b)(2)(i), (iii). “[The] alien must make
8 some showing that authorities in h[er] country of nationality
9 are either aware of h[er] activities or likely to become aware
10 of h[er] activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135,
11 143 (2d Cir. 2008). The agency did not err in finding that Zheng
12 failed to demonstrate a well-founded fear of future persecution
13 based on her practice of Christianity.
14 Zheng’s testimony that authorities are aware of her
15 religion was not credible. Further, because tens of millions
16 of Christians practice in unregistered churches in China
17 without sanction, Zheng did not demonstrate either that
18 authorities are likely to become aware of her practice or that
19 a reasonable possibility existed that they would persecute her
20 on that ground. Accordingly, the agency did not err in
21 determining that Zheng failed to demonstrate a reasonable
22 possibility that she would be singled out for persecution or
23 the systemic or pervasive persecution of similarly situated
4
1 Christians sufficient to demonstrate a pattern or practice of
2 persecution in China. See 8 C.F.R. § 1208.13(b)(2) (i) (iii);
3 Hongsheng Leng, 528 F.3d at 142-43; In re A-M-, 23 I. & N. Dec.
4 737, 741 (B.I.A. 2005). That finding was dispositive of
5 asylum, withholding of removal, and CAT relief insofar as those
6 claims were based on Zheng’s religion. See Paul v. Gonzales,
7 444 F.3d 148, 156-57 (2d Cir. 2006).
8 II. Political Claim
9 To establish eligibility for asylum and withholding of
10 removal, an “applicant must establish that race, religion,
11 nationality, membership in a particular social group, or
12 political opinion was or will be at least one central reason
13 for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i);
14 8 U.S.C. § 1231(b)(3)(A); see also In re J-B-N- and S-M-, 24
15 I. & N. Dec. 208, 212-14 (B.I.A. 2007). In order to demonstrate
16 that persecution (past or prospective) bears a nexus to an
17 applicant’s political opinion, the “applicant must [] show,
18 through direct or circumstantial evidence, that the
19 persecutor’s motive to persecute arises from the applicant’s
20 political belief.” Yueqing Zhang v. Gonzales, 426 F.3d 540,
21 545 (2d Cir. 2005) (citing INS v. Elias-Zacarias, 502 U.S. 478,
22 483 (1992)). “[T]he enforcement of generally applicable law
23 cannot be said to be on account of the offender’s political
5
1 opinion, even if the offender objects to the law.” Jin Jin Long
2 v. Holder, 620 F.3d 162, 166 (2d Cir. 2010). However,
3 “prosecution that is pretext for political persecution is not
4 on account of law enforcement.” Id.
5 In Jin Jin Long, we remanded Long’s proceedings for further
6 consideration of his claim that he was persecuted on account
7 of his political opinion when he was arrested, detained, and
8 repeatedly beaten for providing assistance to North Korean
9 refugees who had illegally entered China. In doing so, we noted
10 that the Chinese government’s detention of individuals
11 suspected of aiding North Korean refugees “can be seen as
12 enforcement of the law (assuming there is a law prohibiting
13 assistance to North Korean refugees), but it [might] also
14 suggest an active resistance to China’s North Korean
15 immigration policies, and an attempt at suppression.” Id. at
16 167. We found that “the BIA failed to consider a number of facts
17 that may support an inference that [Long’s] arrest and detention
18 were pretextual.” Id. Specifically, it failed to consider
19 Long’s credible testimony that he was never formally charged
20 and that he was “subjected to prolonged detention and repeated
21 physical abuse,” and it failed to note that “U.S. State
22 Department country reports on China suggest[ed] that the North
23 Korean refugee issue is politically charged.” Id. Therefore,
6
1 we remanded for the BIA to determine “whether there is a law
2 barring assistance to North Koreans, and (whether there is or
3 is not) in what circumstances persecution of those who assist
4 North Korean refugees would constitute persecution on account
5 of a protected ground.” Id. at 164; see also id. at 167-68.
6 In Jin Jin Long, we denied the petition of a second individual,
7 Song, whom police sought to arrest for arranging to smuggle
8 family from North Korea, because the record did not support an
9 inference that Song acted from a political motive or that
10 government officials were motivated to pursue him to suppress
11 his opinion. Id. at 168.
12 In Zheng’s case, the evidence does not compel the
13 conclusion that police arrested her for violating immigration
14 laws as a pretext for suppressing her political opposition to
15 China’s policy towards North Korean refugees. Unlike Long,
16 Zheng admitted that she assisted illegal North Korean refugees
17 in finding employment and that this act formed the underlying
18 basis for her arrest, and she submitted evidence that she was
19 detained pursuant to the Criminal Procedure Laws of the People’s
20 Republic of China and her family was formally notified of her
21 detention. And, unlike the record in Jin Jin Long, the record
22 have contains evidence of both local and national laws in China
23 that prohibit individuals from providing assistance to illegal
7
1 refugees (whether from North Korea or elsewhere). Id. at
2 167-68. Further, that Zheng’s assistance was discovered only
3 after a legitimate tax audit at the factory where she had helped
4 refugees obtain employment indicated that the police were not
5 looking for a pretext to arrest her on account of her
6 humanitarian assistance to illegal North Korean refugees.
7 Although punishment that is disproportionate to the crime
8 committed may evidence persecution rather than legitimate
9 prosecution, see id. at 167, Zheng’s abuse, was not extreme or
10 repeated, and thus the agency was not compelled to conclude on
11 this fact alone that police were motivated to detain and harm
12 her on account of an imputed political opinion. See id. at 166,
13 168; see also Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir.
14 2011); Yueqing Zhang, 426 F.3d at 545.
15 Because, because the agency reasonably found that Zheng
16 failed to demonstrate past persecution or a well-founded fear
17 of persecution on account of her political opinion, it did not
18 err in denying asylum and withholding of removal. See 8 U.S.C.
19 § 1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A). The agency
20 also did not err in denying Zheng’s claim for CAT relief. Zheng
21 did not allege that the abuse she suffered caused her “severe
22 pain or suffering,” 8 C.F.R. § 1208.18(a)(1); Kyaw Zwar Tun v.
23 U.S. INS, 445 F.3d 554, 567 (2d Cir. 2006), and evidence of a
8
1 generalized risk of torture of those detained in China is
2 insufficient to establish eligibility for CAT relief, see Mu
3 Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir.
4 2005).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DISMISSED as moot. Any pending request for oral argument
10 in this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
9