Yingjin Zhu v. Lynch

14-957 (L)
Zhu v. Lynch
BIA
Weisel, IJ
A200 743 359
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 August, two thousand sixteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 YINGJIN ZHU,
14 Petitioner,
15
16 v. 14-957(L),
17 14-4094(Con)
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jan Potemkin, New York,
25 New York.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General;
29 Michelle G. Latour, Deputy Director;
30 Victor M. Lawrence, Senior
1 Litigation Counsel, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of these petitions for review of two
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petitions for review
9 are DENIED.
10 Petitioner Yingjin Zhu, a native and citizen of the
11 People’s Republic of China, seeks review of (1) a February 28,
12 2014, decision of the BIA that affirmed an April 5, 2012,
13 decision of an Immigration Judge (“IJ”) denying asylum,
14 withholding of removal, relief under the Convention Against
15 Torture (“CAT”), and denied her motion to remand in the first
16 instance, In re Yingjin Zhu, No. A200 743 359 (B.I.A. Feb. 28,
17 2014), aff’g No. A200 743 359 (Immig. Ct. N.Y. City Apr. 5,
18 2012), and (2) an October 9, 2014, decision of the BIA denying
19 her motion to reopen. In re Yingjin Zhu, No. A200 743 359
20 (B.I.A. Oct. 9, 2014). We assume the parties’ familiarity with
21 the underlying facts and procedural history in this case.
22 I. Docket 14-957 (L), Order of Removal and Motion to Remand
23 Under the circumstances of this case, we have reviewed the
24 decision of the IJ as supplemented by the BIA. See Yan Chen
25 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
2
1 standards of review are well established. See 8 U.S.C.
2 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510,
3 513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep’t of Justice, 421
4 F.3d 149, 156 (2d Cir. 2005).
5 A. Asylum, Withholding of Removal, and CAT Relief
6 An alien may establish eligibility for asylum and
7 withholding of removal based on past persecution alone. See
8 8 C.F.R. §§ 1208.13(b), 1208.16(b)(1). A valid past
9 persecution claim can be based on harm other than threats to
10 life or freedom, including non-life-threatening violence and
11 physical abuse, Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d
12 Cir. 2006), but the harm must be sufficiently severe, rising
13 above “mere harassment,” Ivanishvili v. U.S. Dep’t of Justice,
14 433 F.3d 332, 341 (2d Cir. 2006).
15 The agency reasonably concluded that Zhu failed to
16 establish that she suffered past persecution based on Chinese
17 officials’ suspicion that she supported the return of the
18 Yanbian Korean Autonomous Prefecture to Korea. She did not
19 suffer any harm during her brief detention. See Jian Qiu Liu
20 v. Holder, 632 F.3d 820, 822 (2d Cir. 2011). And she did not
21 allege any severe economic disadvantage as a result of being
22 demoted and required to report certain of her business
3
1 interactions. See Huo Qiang Chen v. Holder, 773 F.3d 396, 405
2 (2d Cir. 2014).
3 Absent past persecution, an alien may establish
4 eligibility for asylum by demonstrating a well-founded fear of
5 future persecution. 8 C.F.R. § 1208.13(b)(2). To establish
6 a well-founded fear of persecution, an applicant must show that
7 she subjectively fears persecution and that her fear is
8 objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d
9 169, 178 (2d Cir. 2004).
10 Contrary to Zhu’s contention, the agency did not apply an
11 overly stringent burden of proof when it noted that she had not
12 demonstrated that the Chinese government maintained an interest
13 in monitoring or harming her. See Guan Shan Liao v. U.S. Dep’t
14 of Justice, 293 F.3d 61, 68-69 (2d Cir. 2002). Indeed, her fear
15 of future persecution was not objectively reasonable given her
16 admission that she had no evidence that the Chinese government
17 continues to be interested in her or is looking for her for any
18 political reason. See Jian Xing Huang v. INS, 421 F.3d 125,
19 129 (2d Cir. 2005) (“In the absence of solid support in the record
20 . . . , [an applicant’s] fear is speculative at best”).
21 Zhu’s failure to demonstrate a well-founded fear of
22 persecution is dispositive of asylum, withholding of removal,
4
1 and CAT relief because all three claims are based on the same
2 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57
3 (2d Cir. 2006).
4 B. Motion to Remand
5 To obtain remand based on an ineffective assistance claim,
6 an alien must substantially comply with certain procedures laid
7 out in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988). See
8 Jian Yun Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 46-47 (2d
9 Cir. 2005). Specifically, the alien must submit an affidavit
10 that details her agreement with former counsel, proof that she
11 notified counsel of her allegations, and information regarding
12 whether a complaint has been filed with the appropriate
13 disciplinary authority or an explanation for failing to do so.
14 See Lozada, 19 I. & N. Dec. at 639. Failure to comply
15 substantially with the Lozada requirements constitutes
16 forfeiture of an ineffective assistance claim. See Jian Yun
17 Zheng, 409 F.3d at 46-47.
18 As the BIA found, Zhu failed to substantially comply with
19 the Lozada requirements because she did not submit an affidavit
20 detailing her agreement with her former attorneys, and she did
21 not file a complaint with the appropriate disciplinary
22 authority. Although Zhu challenges the BIA’s finding in her
5
1 opening brief, she admitted in a later motion before the BIA
2 that her motion to remand did not comply with Lozada.
3 Accordingly, the BIA did not err in rejecting Zhu’s ineffective
4 assistance claim as a basis for remand. See Jian Yun Zheng,
5 409 F.3d at 46-47.
6 II. Docket 14-4094 (Con), Motion to Reopen
7 We review the denial of a motion to reopen for abuse of
8 discretion, and review the BIA’s fact-finding regarding country
9 conditions for substantial evidence. See Jian Hui Shao v.
10 Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). In order to
11 prevail on a claim of ineffective assistance of counsel, a
12 movant must show that competent counsel would have acted
13 otherwise, and that she was prejudiced by counsel’s
14 performance. Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir. 1994);
15 Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993). To
16 demonstrate prejudice, or otherwise succeed on a motion to
17 reopen, a movant must establish a prima facie case for the
18 underlying substantive relief sought. See Rabiu, 41 F.3d at
19 882-83; see also INS v. Abudu, 485 U.S. 94, 104 (1988).
20 The BIA did not err in finding that Zhu failed to
21 demonstrate her prima facie eligibility for asylum on account
22 of her Christian faith. The BIA explicitly acknowledged
6
1 reports of religious suppression and police harassment of
2 unregistered religious groups in China. Nevertheless, it
3 reasonably noted country conditions evidence that the Chinese
4 government permits family and friends to meet in private for
5 worship and bible study, and that unregistered church members
6 have noticed increased freedom to conduct religious services.
7 The country conditions evidence further states that around 70
8 million Christians practice in unregistered churches in China,
9 and that authorities in some areas of the country do not
10 interfere with their activities.
11 Moreover, the BIA acknowledged Zhu’s assertion that her
12 friends in China, to whom she had proselytized, were detained
13 and beaten for unregistered church activities in April 2012.
14 The BIA did not err in finding that the vague description Zhu
15 and her friend provided regarding this incident was
16 insufficient to demonstrate a realistic chance that Zhu would
17 face persecution if she were to practice in an unregistered
18 church upon return to China. See Jian Hui Shao, 546 F.3d at
19 172.
20 Because Zhu failed to demonstrate her prima facie
21 eligibility for relief, the BIA did not err in denying her motion
22 to reopen. See Rabiu, 41 F.3d at 882-83; Abudu, 485 U.S. at
7
1 104. Accordingly, we do not consider the BIA’s alternative
2 finding that Zhu failed to satisfy the Lozada requirements in
3 her second motion. See INS v. Bagamasbad, 429 U.S. 24, 25
4 (1976) (“As a general rule courts and agencies are not required
5 to make findings on issues the decision of which is unnecessary
6 to the results they reach.”).
7 For the foregoing reasons, the petitions for review are
8 DENIED. As we have completed our review, any stay of removal
9 that the Court previously granted in these petitions is VACATED,
10 and any pending motion for a stay of removal in these petitions
11 is DISMISSED as moot. Any pending request for oral argument
12 is DENIED in accordance with Federal Rule of Appellate Procedure
13 34(a)(2), and Second Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O=Hagan Wolfe, Clerk
8