Qing Zheng v. Lynch

15-3314
Zheng v. Lynch
BIA
Hom, IJ
A205 918 223
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
2 At a stated term of the United States Court of Appeals
3 for the Second Circuit, held at the Thurgood Marshall United
4 States Courthouse, 40 Foley Square, in the City of New York,
5 on the 2nd day of December, two thousand sixteen.
6
7 PRESENT:
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 QING ZHENG,
15 Petitioner,
16
17 v. 15-3314
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Henry Zhang, New York, N.Y.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal
27 Deputy Assistant Attorney General;
28 Mary Jane Candaux, Assistant
29 Director; Jeremy M. Bylund, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 D.C.
34
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
4 is DENIED.
5 Petitioner Qing Zheng, a native and citizen of the
6 People’s Republic of China, seeks review of a September 17,
7 2015 decision of the BIA affirming a December 4, 2013
8 decision of an Immigration Judge (“IJ”) denying Zheng’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Qing
11 Zheng, No. A205 918 223 (B.I.A. Sept. 17, 2015), aff’g No.
12 A205 918 223 (Immig. Ct. N.Y. City Dec. 4, 2013). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 We have reviewed the IJ’s decision as modified by the
16 BIA, i.e., minus the ground that the BIA declined to reach
17 (the IJ’s adverse credibility determination). See Xue Hong
18 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
19 2005). The applicable standards of review are well
20 established. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
21 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
22 Past persecution can be established by harm other than
23 threats to life or freedom, including non-life-threatening
2
1 violence and physical abuse, Beskovic v. Gonzales, 467 F.3d
2 223, 226 n.3 (2d Cir. 2006), but the harm must be
3 sufficiently severe, rising above “mere harassment,”
4 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
5 Cir. 2006). The agency “must . . . be keenly sensitive to
6 the fact that a ‘minor beating’ or, for that manner, any
7 physical degradation designed to cause pain, humiliation, or
8 other suffering, may rise to the level of persecution if it
9 occurred in the context of an arrest or detention on the
10 basis of a protected ground.” Beskovic, 467 F.3d at 227.
11 However, “a beating that occurs within the context of an
12 arrest of detention [does not] constitute[] persecution per
13 se.” Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir.
14 2011). “[P]ersecution is ‘an extreme concept that does not
15 include every sort of treatment our society regards as
16 offensive.’” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
17 Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,
18 416 F.3d 192, 198 (2d Cir. 2005)).
19 In this case, the IJ acknowledged that a minor beating
20 may rise to the level of persecution if it occurs in the
21 context of an arrest or detention. The IJ concluded that,
22 although Zheng was beaten while detained, she did not
23 satisfy her burden of proof because she failed to provide
3
1 details of any specific injury suffered and she admitted
2 that she did not require medical treatment as a result.
3 Therefore, the IJ did not err in concluding that she failed
4 to demonstrate that they rose to the level of persecution.
5 See Mei Fun Wong, 633 F.3d at 72; cf. Jian Qiu Liu, 632 F.3d
6 at 822 (“[W]e find no error in the BIA’s conclusion that Liu
7 failed to establish persecution because substantial evidence
8 supports the BIA’s finding that, prior to his arrest and
9 detention by local police, he suffered only minor bruising
10 from an altercation with family planning officials, which
11 required no formal medical attention and had no lasting
12 physical effect”).
13 Given Zheng’s failure to provide sufficient details,
14 the agency did not err in relying further on her failure to
15 even attempt to obtain admittedly available evidence to
16 corroborate her detention. See 8 U.S.C. § 1158(b)(1)(B)(i)
17 (“The testimony of the applicant may be sufficient to
18 sustain the applicant’s burden without corroboration, but
19 only if the applicant satisfies the trier of fact that the
20 applicant’s testimony is credible, is persuasive, and refers
21 to specific facts sufficient to demonstrate that the
22 applicant is a refugee.”); see also Chuilu Liu v. Holder,
23 575 F.3d 193, 196-98 (2d Cir. 2009). For these reasons, the
4
1 agency did not err in concluding that Zheng failed to
2 satisfy her burden of demonstrating past persecution.
3 Absent past persecution, an applicant may establish
4 eligibility for asylum by demonstrating a well-founded fear
5 of future persecution, 8 C.F.R. § 1208.13(b)(2), which must
6 be 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
9 either a reasonable possibility that she would be singled
10 out for persecution or that the country of removal has a
11 pattern or practice of persecuting individuals similarly
12 situated to her. 8 C.F.R. § 1208.13(b)(2)(iii).
13 The agency did not err in finding that Zheng failed to
14 establish a well-founded fear of persecution on account of
15 her religion. She failed to submit reasonably available
16 evidence to corroborate her continued religious practice in
17 the United States. Furthermore, the country conditions
18 evidence in the record established that tens of millions of
19 Christians practice in unregistered churches in China and
20 that such practice was tolerated without interference in
21 some areas. The country conditions evidence did not discuss
22 any incidents of persecution in Zheng’s home province. Cf.
23 Jian Hui Shao v. Mukasey, 546 F.3d 138, 142, 149, 169 (2d
5
1 Cir. 2008) (finding no error in BIA’s requirement that
2 applicant demonstrate that officials in his or her local
3 area enforce a government policy in a manner that would give
4 rise to a well-founded fear of persecution when the country
5 conditions evidence demonstrates local variations in the
6 enforcement of that policy).
7 Accordingly, because Zheng failed to demonstrate past
8 persecution or a well-founded fear of persecution, the
9 agency did not err in denying asylum or withholding of
10 removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
11 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DENIED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
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