Su Gao v. Holder

14-2040
Gao v. Holder
BIA
Poczter, IJ
A205 026 111
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
6th day of April, two thousand fifteen.
PRESENT:
JOSÉ A. CABRANES,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
SU GAO,
Petitioner,
v. 14-2040
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Joshua E. Bardavid, New York, New
York.
FOR RESPONDENT: Joyce R. Branda, Acting Assistant
Attorney General; Anthony P.
Nicastro, Senior Litigation
Counsel; Yanal H. Yousef, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Su Gao, a native and citizen of China, seeks
review of a June 5, 2014, decision of the BIA affirming an August
1, 2012, decision of an Immigration Judge (“IJ”) denying Gao’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Su Gao,
No. A205 026 111 (B.I.A. June 5, 2014), aff’g No. A205 026 111
(Immig. Ct. N.Y. City Aug. 1, 2012). We assume the parties’
familiarity with the underlying facts and procedural history
of this case.
Under the circumstances of this case, we have reviewed the
IJ’s decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009).
To be eligible for asylum, an applicant, like Gao, who does
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not allege past persecution, must demonstrate a well-founded
fear of future persecution. See 8 U.S.C. §§ 1101(a)(42),
1158(b)(1)(A); Kyaw Zwar Tun v. INS, 445 F.3d 554, 564 (2d Cir.
2006). To demonstrate a well-founded fear of persecution, an
applicant must show that she subjectively fears persecution and
that such fear is objectively reasonable. Ramsameachire v.
Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); see also Jian Hui
Shao v. Mukasey, 546 F.3d 138, 162 (2d Cir. 2008). An applicant
can establish an objective fear of persecution by either
(1) offering evidence that there is a reasonable possibility
that she would be singled out individually for persecution, or
(2) establishing a pattern or practice of persecution of
similarly situated persons in her home country.
8 C.F.R. § 1208.13(b)(2); Hongsheng Leng v. Mukasey, 528 F.3d
135, 142-43 (2d Cir. 2008).
The agency did not err in finding that Gao failed to
establish an objectively reasonable fear, either by showing
that she would be singled out for persecution or that there is
a pattern or practice of persecution of underground church
members in China’s Fujian province. Although Gao offered a
letter from her aunt to show that underground church members
have been persecuted, the agency reasonably gave this letter
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diminished weight because her aunt was an interested witness
and unavailable for cross-examination. See Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding
that weight afforded to evidence lies largely within agency’s
discretion); see also In re H–L–H & Z–Y–Z–, 25 I. & N. Dec. 209,
215 (B.I.A. 2010) (giving diminished weight to letters from
friends and relatives when they were written by interested
witnesses not subject to cross-examination), rev’d on other
grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012);
cf. Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring
to agency when it declined to give weight to unsworn letter from
applicant’s spouse who was an “interested witness”). Having
considered Gao’s individualized evidence, the agency
reasonably concluded that her claim was speculative: it
required assuming that Gao would join an underground church;
proselytize publicly; and, unlike many underground church
members who worship without harm, be arrested and persecuted.
See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
(holding that a fear is not objectively reasonable if it lacks
“solid support” in the record and is merely “speculative at
best”).
Nor has Gao shown any error in the agency’s pattern or
4
practice ruling. Because she fails to meaningfully challenge
it before this Court, Gao has waived that issue. Yueqing Zhang
v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005)
(holding that issues not sufficiently argued in briefs are
considered waived and normally will not be addressed on appeal).
Nevertheless, the agency did not err. The background evidence
showed repression and harassment of underground church members,
but also that the degree of interference with underground
churches varied regionally. Evidence in the record that there
were very few incidents of religious persecution in Gao’s home
province of Fujian supports the agency’s conclusion that Gao
failed to meet her burden of showing systemic or pervasive
persecution in Fujian province. See Jian Hui Shao, 546 F.3d
at 148-49, 169-72 (stating that where enforcement of a policy
varies, applicant has burden to show well-founded fear of
persecution in her locality in China).
Finally, Gao’s argument that the agency failed to consider
the entirety of the evidence is unavailing. We “presume that
an IJ has taken into account all of the evidence before [her],
unless the record compellingly suggests otherwise.” Xiao Ji
Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 159 n.13 (2d Cir.
2006). Here, the IJ explicitly stated that “the [c]ourt has
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considered the entire record including all of the documents
whether or not they are specifically mentioned herein,” and then
summarized Gao’s evidence.
Having failed to meet the lower burden of proof for asylum
eligibility, Gao also failed to meet the higher standards for
withholding of removal and CAT relief. Lecaj v. Holder, 616
F.3d 111, 119-20 (2d Cir. 2010).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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