Fu v. Barr

18-1729
Fu v. Barr
BIA
Sponzo, IJ
A202 024 313
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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
16th day of December, two thousand nineteen.
PRESENT:
DENNIS JACOBS,
SUSAN L. CARNEY,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________
TIANQI FU,
Petitioner,
v. No. 18-1729
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: GARY J. YERMAN, Esq., New York, NY.
FOR RESPONDENT: BRENDAN P. HOGAN, Attorney (Joseph H.
Hunt, Assistant Attorney General;
Song Park, Senior Litigation
Counsel, on the brief) for Office of
Immigration Litigation, United
States Department of Justice, Civil
Division, Washington, DC.
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 Tianqi Fu, a native and citizen of the People’s
Republic of China, seeks review of a decision of the BIA affirming
a decision of an Immigration Judge (“IJ”) denying his application
for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). In re Tianqi Fu, No. A202 024
313 (B.I.A. May 18, 2018), aff’g No. A202 024 313 (Immig. Ct. N.Y.
City Jun. 27, 2017). We assume the parties’ familiarity with the
underlying facts and procedural history in this case, to which we
refer only as required to explain our decision to deny the
petition.
We have considered both the IJ’s and the BIA’s decisions “for
the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec.,
448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
review are well established. See 8 U.S.C. § 1252(b)(4)(B); see
also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). We
conclude that substantial evidence supports the agency’s
determination that Fu failed to establish a well-founded fear of
future persecution.
Fu makes no claim of past persecution. Absent past
persecution, an applicant may establish eligibility for asylum by
demonstrating “that he has a well-founded fear of future
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persecution, which requires that the alien present credible
testimony that he subjectively fears persecution and establish
that his fear is objectively reasonable.” Ramsameachire v.
Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); see also 8 C.F.R.
§ 1208.13(b)(2). To demonstrate such a well-founded fear, an
applicant must show either a reasonable possibility that he “would
be singled out individually for persecution” or that the country
of removal has a “pattern or practice” of persecuting individuals
“similarly situated” to him. 8 C.F.R. § 1208.13(b)(2)(iii). Where,
as here, an applicant expresses a fear based on activities
undertaken solely in the United States, he “must make some showing
that authorities in his country of nationality are either aware of
his activities or likely to become aware of his activities.”
Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). In
the asylum context, this requires an applicant to show a
“reasonable possibility” that the government will become aware of
the activity. Id. Absent “solid support” in the record, a
petitioner’s fear of future persecution is properly deemed
“speculative at best.” Jian Xing Huang v. U.S. I.N.S., 421 F.3d
125, 129 (2d Cir. 2005).
The agency did not err in finding that Fu failed to establish
a well-founded fear of future persecution. Fu did not demonstrate
that Chinese officials are aware, or are likely to become aware,
of his religious practice should he be removed to China. Fu did
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not assert that Chinese officials are aware of his religious
activities in the United States. Rather, he alleged that Chinese
officials knew of his father’s membership in a family church and,
in 2009, had detained and tortured Fu’s father for that reason.
Further, Fu failed to demonstrate that Chinese officials are
likely to discover Fu’s own religious practice. First, his limited
church attendance in the United States made his assertions
regarding any possible future church attendance in China
speculative. Fu admitted at his 2017 hearing that, since becoming
interested in Christianity after arriving in the United States in
2013, he has attended church infrequently. He acknowledged that he
therefore was as yet ineligible for baptism. In addition to
conceding that his church attendance has been infrequent, Fu
further acknowledged that, since he left China in 2013, the police
had not visited or threatened his mother on account of his father’s
past practice, decreasing the likelihood that the police would
discover Fu’s own religious practice through any threatening
visits. In addition, although Fu testified that he planned to
continue attending his current U.S. church, that he did not want
to abandon his faith if removed to China, and that in China, true
believers attend underground churches (as opposed to state-
sanctioned churches), he never stated directly that he would
regularly attend an underground church in China if removed.
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Accordingly, we think it speculative to conclude that, if
removed, Fu would attend an underground church in China and be
persecuted as a result. Moreover, his testimony that authorities
had not approached his mother in recent years and the record
evidence showing that tens of millions of people in China are
practicing Christians undermined his claim that authorities would
learn of his individual activities and persecute him, in
particular. See Hongsheng Leng, 528 F.3d at 143; see also Jian
Xing Huang, 421 F.3d at 129.
Fu also contends that China has a pattern or practice of
persecuting individuals who are similarly situated to him, and
that this is enough to establish an objective basis for fearing
future persecution. Although Fu did not specifically present this
argument to the agency, we treat it as exhausted because the BIA
addressed (and rejected) it, concluding that it could discern no
pattern or practice of persecution of infrequent religious
practitioners such as Fu. See Ruiz-Martinez v. Mukasey, 516 F.3d
102, 112 n.7 (2d Cir. 2008). The agency reasonably found in
addition that the documentary record evidence adduced in this case
does not support a finding that, in China, there is a “systemic or
pervasive” persecution of similarly situated Christians sufficient
to demonstrate a cognizable pattern and practice of persecution.
In re A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005) (describing a
pattern or practice of persecution as the “systemic or pervasive”
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persecution of a group); see also 8 C.F.R. § 1208.13(b)(2)(iii)
(setting forth requirements for establishing asylum eligibility);
Santoso v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009)
(rejecting pattern or practice claim on basis of background
materials describing religious persecution as localized rather
than countrywide in Indonesia, “a nation state consisting of
approximately 6000 inhabited islands”). The articles that Fu
submitted to the agency reflect that China’s population includes
approximately 70 million Christians attending official and
unofficial churches. Much of the background record evidence
suggests that Chinese authorities target primarily the leadership
of particular churches and not general members of Christian
congregations.
Additionally, the record shows that the Chinese government’s
treatment of members of underground churches varies by region.
Although in 2009, the police in Fu’s home province of Jilin
targeted Fu’s father, the record contains no documentary evidence
regarding the police’s treatment of underground church members
there, either before or after 2009. In view of the absence of
record evidence suggesting pervasive persecution of even regular
practitioners in his home region, Fu did not establish a relevant
pattern or practice of persecution of individuals who attend church
only sporadically. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
165–66, 174 (2d Cir. 2008) (finding no error in BIA’s requiring
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localized evidence of persecution in China when record reflected
wide variances in population control policies and practices around
the country).
We decline Fu’s request to consider the 2017 U.S. State
Department Religious Freedom Report, because it was not in the
record before the agency. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he
court of appeals shall decide the petition only on the
administrative record on which the order of removal is based.”).
Even were we to consider it, however, it would not cause us to
alter our conclusion because it contains no reference to the
treatment of underground Christian church members in Jilin
Province. See Mukasey, 546 F.3d at 165-66.
In sum, given the lack of evidence of Fu’s regular practice
of Christianity in the United States, and of proof that any such
practice by him would occur, be discovered, and result in
persecution upon his return to China, we identify no error in the
agency’s conclusion that Fu failed to demonstrate the objectively
reasonable fear of future harm required to sustain an asylum claim.
Fu’s failure to carry this burden for his asylum claim necessarily
means that he is unable to show the higher likelihood of harm that
is required to sustain a claim for withholding and CAT. See Lecaj
v. Holder, 616 F.3d 111, 119 (2d Cir. 2010).
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For the foregoing reasons, the petition for review is DENIED
and the previously granted stay is VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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