Zhongmin Ren v. Sessions

16-18
Ren v. Sessions
BIA
Wright, IJ
A205 230 421
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 10th day of July, two thousand seventeen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 ZHONGMIN REN,
14 Petitioner,
15
16 v. 16-18
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joan Xie, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal
26 Deputy Assistant Attorney
 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Jefferson B. Sessions, III, is automatically substituted for
former Attorney General Loretta E. Lynch as Respondent.
1 General; Mary Jane Candaux,
2 Assistant Director; Jeremy M.
3 Bylund, Trial Attorney, Office
4 of Immigration Litigation, United
5 States Department of Justice,
6 Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review is
11 DENIED.
12 Petitioner Zhongmin Ren, a native and citizen of China,
13 seeks review of a December 15, 2015 decision of the BIA affirming
14 an April 16, 2014 decision of an Immigration Judge (“IJ”)
15 denying Ren’s application for asylum, withholding of removal,
16 and relief under the Convention Against Torture (“CAT”). In
17 re Zhongmin Ren, No. A205 230 421 (B.I.A. Dec. 15, 2015), aff’g
18 No. A205 230 421 (Immig. Ct. N.Y.C. Apr. 16, 2014). We assume
19 the parties’ familiarity with the underlying facts and
20 procedural history in this case.
21 Under the circumstances of this case, we review the IJ’s
22 decision as modified by the BIA (i.e., minus the IJ’s finding
23 that Ren’s testimony concerning when he received his wife’s
24 letter was not credible). See Xue Hong Yang v. U.S. Dep’t of
25 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The “substantial
26 evidence” standard of review applies to the IJ’s factual
2
1 findings, and we review questions of law de novo. See 8 U.S.C.
2 § 1252(b)(4); Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 For the following reasons, we conclude that the agency did not
4 err in determining that Ren failed to establish a well-founded
5 fear of persecution based on his membership in the China
6 Democracy Party (“CDP”) in New York and pro-democracy activity
7 in the United States.
8 Absent past persecution, an alien may establish
9 eligibility for asylum by demonstrating a well-founded fear of
10 future persecution, which is a “subjective fear that is
11 objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552 F.3d
12 277, 284 (2d Cir. 2009) (internal quotation marks omitted); see
13 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b)(2). To show a
14 well-founded fear of future persecution, an asylum applicant
15 may (1) “demonstrat[e] that he or she would be singled out
16 individually for persecution if returned,” or (2) show that his
17 or her country of nationality has a “pattern or practice . . .
18 of persecution of a group of persons similarly situated to the
19 applicant and establish[] his or her own inclusion in, and
20 identification, with such group.” Y.C. v. Holder, 741 F.3d
21 324, 332 (2d Cir. 2013) (internal quotation marks omitted); see
22 8 C.F.R. § 1208.13(b)(2)(iii)).
3
1 The agency did not err in concluding that Ren failed to show
2 a reasonable possibility that he would be singled out
3 individually for persecution. See Jian Xing Huang v. INS, 421
4 F.3d 125, 129 (2d Cir. 2005) (noting that “[i]n the absence of
5 solid support in the record” a fear of persecution is not
6 objectively reasonable and is “speculative at best”).
7 “Importantly, to establish a well-founded fear of persecution
8 in the absence of any evidence of past persecution, an alien
9 must make some showing that authorities in his [or her] country
10 of nationality are either aware of his [or her] activities or
11 likely to become aware of his [or her] activities.” Y.C., 741
12 F.3d at 332 (internal quotation marks omitted). Although Ren
13 submitted a letter from his wife stating that she had been
14 visited by police who were aware of Ren’s pro-democracy
15 activities in the United States, the agency reasonably declined
16 to credit this letter because it was unsworn and submitted by
17 an interested witness who was unavailable for
18 cross-examination. See Xiao Ji Chen v. U.S. Dep’t of Justice,
19 471 F.3d 315, 342 (2d Cir. 2006) (holding that the weight
20 accorded to an applicant’s evidence “lie[s] largely within the
21 discretion of the IJ” (internal quotation marks omitted));
22 Y.C., 741 F.3d at 334 (affirming agency’s determination that
4
1 letter from applicant’s relative in China was entitled to
2 limited weight because it was unsworn and submitted by an
3 interested witness). And while Ren testified that his wife had
4 told him that she later saw three or four “suspicious people”
5 near their home in China, the agency did not err in finding this
6 testimony insufficient to demonstrate the Chinese government’s
7 awareness of Ren’s pro-democracy activities absent further
8 corroboration. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“The
9 testimony of the applicant may be sufficient to sustain the
10 applicant’s burden without corroboration, but only if the
11 applicant satisfies the trier of fact that the applicant’s
12 testimony is credible, is persuasive, and refers to specific
13 facts sufficient to demonstrate that the applicant is a
14 refugee.”); Chuilu Liu v. Holder, 575 F.3d 193, 196-97 (2d Cir.
15 2009).
16 Apart from his wife’s letter, the only evidence that Ren
17 provided to demonstrate the Chinese authorities’ allegedly
18 likely awareness of his U.S. political activity was photographs
19 of protest demonstrations he attended in New York and four
20 articles criticizing the Chinese government that he had posted
21 online. The agency considered this evidence and reasonably
22 concluded that Ren’s claim was speculative: to find that Ren
5
1 would face a likely threat of persecution in China, the agency
2 would have had to assume that Chinese authorities had read Ren’s
3 articles, identified Ren as the author, and had received reports
4 of his protest activity in the United States. See Y.C., 741
5 F.3d at 344 (agreeing that petitioner had not shown a
6 well-founded fear of future persecution based on participation
7 in anti-Communist candlelight vigils in the U.S. and
8 publication of a pro-democracy article online because there was
9 no evidence that the Chinese government was aware of such
10 activity). There was no support for any such inference.
11 The agency also did not err in concluding that Ren failed
12 to establish a pattern or practice of persecution of ordinary
13 members of the CDP in China. To establish a pattern or practice
14 of persecution against a particular group, an applicant must
15 demonstrate that the harm to that group is “systemic or
16 pervasive.” In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005);
17 cf. Mufied v. Mukasey, 508 F.3d 88, 92-93 (2d Cir. 2007)
18 (accepting the BIA’s standard as “a reasonable one,” while
19 noting that “[w]ithout further elaboration [the standard does
20 not make clear] how systemic, pervasive, or organized
21 persecution must be before the Board would recognize it as a
22 pattern or practice”). Here, the agency correctly observed
6
1 that Ren presented evidence of only one CDP member, a leader
2 of the party, who was arrested in China, and Ren testified that
3 he himself did not have a leadership role and was only an
4 ordinary member. The agency therefore did not err in
5 concluding that Ren failed to show evidence of a pattern or
6 practice of persecution of similarly-situated individuals.
7 See Y.C., 741 F.3d at 334-35 (affirming agency’s denial of
8 pattern or practice claim by low-level member of Chinese
9 pro-democracy party where only evidence was of persecution of
10 party founder).
11 Accordingly, because the agency reasonably found that Ren
12 failed to demonstrate a well-founded fear of persecution, it
13 did not err in denying asylum or in concluding that he
14 necessarily failed to meet the higher burden required for
15 withholding of removal or CAT relief. Id. at 335.
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of removal
18 that the Court previously granted in this petition is VACATED,
19 and any pending motion for a stay of removal in this petition
20 is DISMISSED as moot. Any pending request for oral argument
21 in this petition is DENIED in accordance with Federal Rule of
7
1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
8