Junli Zhang v. Lynch , 609 F. App'x 49 ( 2015 )

13-4346
Shi v. Lynch
BIA
Hom, IJ
A200 751 372
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of June, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 HUIXIN SHI,
14 Petitioner,
15
16 v. 13-4346
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.*
21 _____________________________________
22
23
24
25 FOR PETITIONER: Gary J. Yerman, New York, NY.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
1
2 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
3 General; Douglas E. Ginsburg,
4 Assistant Director; John M. McAdams,
5 Jr., Trial Attorney, Office of
6 Immigration Litigation, United
7 States Department of Justice,
8 Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner Huixin Shi, a native and citizen of China,
15 seeks review of an October 31, 2013, order of the BIA,
16 affirming the July 9, 2012, decision of an Immigration Judge
17 (“IJ”), denying asylum, withholding of removal, and relief
18 under the Convention Against Torture (“CAT”). In re Huixin
19 Shi, No. A200 751 372 (B.I.A. Oct. 31, 2013), aff’g No. A200
20 751 372 (Immig. Ct. New York City July 9, 2012). We assume
21 the parties’ familiarity with the underlying facts and
22 procedural history in this case.
23 Under the circumstances of this case, we review the
24 decisions of both the IJ and the BIA “for the sake of
25 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
26 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
27
2
1 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
2 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 I. Past Persecution
4 The BIA has defined persecution as “a threat to the
5 life or freedom of, or the infliction of suffering or harm
6 upon, those who differ in a way regarded as offensive.” In
7 re Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985),
8 overruled, in part, on other grounds, by INS v.
9 Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili v.
10 U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006). A
11 past persecution finding may be based on harm other than
12 threats to life or freedom, including “non-life-threatening
13 violence and physical abuse,” Beskovic v. Gonzales, 467 F.3d
14 223, 226 n.3 (2d Cir. 2006), but the harm must be
15 sufficiently severe to rise above “mere harassment,”
16 Ivanishvili, 433 F.3d at 341. “[T]he difference between
17 harassment and persecution is necessarily one of degree that
18 must be decided on a case-by-case basis.” Id.19 The agency reasonably determined that Shi’s past harm
20 did not rise to the level of persecution. Shi was not
21 physically mistreated during her detention, and was
22 permitted to continue studies at her government sponsored
3
1 college. The agency also reasonably concluded that Shi did
2 not suffer economic persecution because she did not provide
3 evidence of her financial situation at the time she was
4 fined, or allege that she suffered any economic disadvantage
5 as a result of the fine, as required. See Guan Shan Liao v.
6 U.S. Dep’t of Justice, 293 F.3d 61, 67, 70 (2d Cir. 2002);
7 accord In re T-Z-, 24 I. & N. Dec. 163, 170-75 (B.I.A.
8 2007).
9 II. Well-Founded Fear of Future Persecution
10 Absent past persecution, an alien may establish
11 eligibility for asylum by demonstrating a well-founded fear
12 of future persecution. 8 C.F.R. § 1208.13(b)(2). “An
13 asylum applicant can show a well-founded fear of future
14 persecution in two ways: (1) by demonstrating that he or she
15 ‘would be singled out individually for persecution’ if
16 returned, or (2) by proving the existence of a ‘pattern or
17 practice in [the] . . . country of nationality . . . of
18 persecution of a group of persons similarly situated to the
19 applicant[.]’” Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir.
20 2013) (quoting 8 C.F.R. § 1208.13(b)(2)(iii)).
21 The agency did not err in finding that Shi failed to
22 show she would be singled out individually for persecution.
4
1 See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
2 (observing that, absent “solid support in the record,” a
3 fear of persecution is “speculative at best”). The agency
4 reasonably found that the country conditions, which
5 reflected problems for religious leaders and large
6 underground church congregations, did not support a
7 well-founded fear of persecution for Shi because she was not
8 a religious leader and attended a small underground church.
9 The agency also reasonably observed that the 2011 ChinaAid
10 Report documented only one instance of a raid on a house
11 church in Shi’s home Province. See Jian Hui Shao v.
12 Mukasey, 546 F.3d 138, 149-50, 159-60, 163-65 (2d Cir.
13 2008). Though Shi contends that the agency selectively
14 cherry picked evidence to support its burden finding, the
15 task of resolving conflicts in the record evidence lies
16 “largely within the discretion of the agency,” id. at 171,
17 and the record does not compellingly suggest that any
18 material evidence was ignored, see Xiao Ji Chen v. U.S.
19 Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006).
20 The agency also did not err in finding that Shi failed
21 to establish a pattern or practice of persecution of
22 underground church members in China. To establish a pattern
23 or practice of persecution against a particular group, a
5
1 petitioner must demonstrate that the harm to that group is
2 “systemic or pervasive.” In re A-M-, 23 I. & N. Dec. 737,
3 741 (B.I.A. 2005); Mufied v. Mukasey, 508 F.3d 88, 92-93 (2d
4 Cir. 2007). Here, the country conditions evidence reflected
5 variation in the treatment of house church members in China.
6 Moreover, the agency reasonably determined that Shi had
7 failed to establish a substantial risk of persecution in her
8 locality. The agency therefore did not err in finding that
9 Shi failed to establish a pattern or practice of persecution
10 of underground church members in China.
11 Because the agency did not err in finding that Shi
12 failed to demonstrate a well-founded fear of persecution, it
13 also did not err in finding that she failed to meet the
14 higher burden required for withholding of removal or CAT
15 relief. See Paul v. Gonzales, 444 F.3d 148, 155-57 (2d Cir.
16 2006); Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
23
6
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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