Gao v. Garland

20-560
Gao v. Garland
BIA
Conroy, IJ
A206 069 883
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
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 22nd day of October, two thousand twenty-one.
5
6 PRESENT:
7 JON O. NEWMAN,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 RUI LAN GAO,
14 Petitioner,
15
16 v. 20-560
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joshua Bardavid, Esq., New York,
24 NY.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General; Song
28 Park, Acting Assistant Director;
29 Sarah L. Martin, Trial Attorney,
1 Office of Immigration Litigation,
2 United States Department of
3 Justice, Washington, DC.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Rui Lan Gao, a native and citizen of the
10 People’s Republic of China, seeks review of a January 15,
11 2020, decision of the BIA affirming a May 8, 2018, decision
12 of an Immigration Judge (“IJ”) denying asylum, withholding of
13 removal, and relief under the Convention Against Torture
14 (“CAT”). In re Rui Lan Gao, No. A206 069 883 (B.I.A. Jan.
15 15, 2020), aff’g No. A206 069 883 (Immig. Ct. N.Y. City May
16 8, 2018). We assume the parties’ familiarity with the
17 underlying facts and procedural history.
18 We review the IJ’s decision as modified by the BIA, i.e.,
19 minus the timeliness finding that the BIA did not reach. See
20 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
21 Cir. 2005). The standards of review are well established.
22 See 8 U.S.C. § 1252(b)(4)(B); Hongsheng Leng v. Mukasey, 528
23 F.3d 135, 141 (2d Cir. 2008). The agency did not err in
24 concluding that Gao failed to satisfy her burden of proving
2
1 a well-founded fear of future persecution in China on account
2 of her practice of Christianity.
3 Absent past persecution, an alien may establish asylum
4 eligibility by demonstrating a well-founded fear of future
5 persecution. 8 C.F.R. § 1208.13(b)(2); Ramsameachire v.
6 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). To do so, an
7 applicant must show either a reasonable possibility that she
8 will be “singled out individually for persecution” or that
9 the country of removal has a “pattern or practice” of
10 persecuting similarly situated individuals. 8 C.F.R.
11 § 1208.13(b)(2)(iii). Where an applicant’s claim is based
12 on activities in the United States, the applicant “must make
13 some showing that authorities in h[er] country of nationality
14 are either aware of h[er] activities” or that there is “a
15 reasonable possibility” of them “becom[ing] aware of h[er]
16 activities.” Hongsheng Leng, 528 F.3d at 143 (internal
17 quotation marks omitted).
18 The agency reasonably concluded that Gao failed to
19 establish that Chinese officials are aware of, or reasonably
20 may become aware of, her religious practice and persecute her
21 as a result. See id. Her testimony regarding what actions
22 she would take to proselytize in China was limited, and her
3
1 evidence showed that tens of millions of Christians practice
2 their religion in China. Further, given that restrictions
3 on religion vary by region in China, the BIA reasonably noted
4 that Gao did not provide evidence of any incidents of
5 persecution against Christian practitioners in her home
6 province of Fujian. See Jian Hui Shao v. Mukasey, 546 F.3d
7 138, 142, 149, 169 (2d Cir. 2008) (finding no error in the
8 agency’s requirement that an applicant demonstrate a well-
9 founded fear of persecution specific to his or her local area
10 when persecutory acts vary according to locality); cf.
11 8 C.F.R. § 1208.13(b)(2)(ii) (“An applicant does not have a
12 well-founded fear of persecution if the applicant could avoid
13 persecution by relocating to another part of the applicant’s
14 country of nationality . . . .”). The agency also reasonably
15 concluded that Gao failed to establish a pattern or practice
16 of persecution of similarly situated individuals given that
17 millions of Christians in China practice their religion
18 without government interference. In re A-M-, 23 I. & N. Dec.
19 737, 741 (B.I.A. 2005) (recognizing that a pattern or practice
20 of persecution is the “systemic or pervasive” persecution of
21 a group); see also 8 C.F.R. § 1208.13(b)(2)(iii).
22 Gao’s failure to establish a well-founded fear of
4
1 persecution was dispositive of asylum, withholding of
2 removal, and CAT relief.* See Paul v. Gonzales, 444 F.3d
3 148, 156–57 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
* Contrary to the Government’s contention, Gao’s arguments
challenge the denial of all forms of relief because the agency
denied withholding of removal and CAT protection because Gao
failed to satisfy her burden for asylum.
5