Shen v. Barr

17-602
Shen v. Barr
BIA
Loprest, IJ
A098 603 482
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 3rd day of September, two thousand twenty.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROSEMARY S. POOLER,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 XUEHUA SHEN, AKA CHOI SUL MAE,
14 Petitioner,
15
16 v. 17-602
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Xuehua Shen, Pro Se, Flushing,
24 NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant
27 Attorney General; Keith I.
28 McManus, Assistant Director; Juria
29 L. Jones, Trial Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
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 in part, and DISMISSED in part.
5 Petitioner Xuehua Shen seeks review of a February 15,
6 2017, decision of the BIA affirming a May 23, 2016, decision
7 of an Immigration Judge (“IJ”) denying Shen’s application for
8 asylum, withholding of removal, and relief under the
9 Convention Against Torture (“CAT”). In re Xuehua Shen, No.
10 A 098 603 482 (B.I.A. Feb. 15, 2017), aff’g No. A 098 603 482
11 (Immig. Ct. N.Y. City May 23, 2016). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 in this case.
14 Under the circumstances of this case, we have reviewed
15 both the IJ’s and BIA’s decisions. Wangchuck v. Dep’t of
16 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
17 the agency’s factual findings for substantial evidence and
18 its legal conclusions de novo. Y.C. v. Holder, 741 F.3d 324,
19 332 (2d Cir. 2013).
20 Shen alleged a fear of persecution in China on account
21 of her political activities in the United States,
22 specifically her attendance at demonstrations and two
23 articles she posted on the internet. She had the burden of
2
1 proving a well-founded fear of persecution on account of her
2 political activism, which required her to establish that her
3 fear was objectively reasonable. See 8 U.S.C. §§
4 1101(a)(42), 1158(b)(1)(B)(i); Ramsameachire v. Ashcroft, 357
5 F.3d 169, 178 (2d Cir. 2004); see also Jian Xing Huang v.
6 U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence
7 of solid support in the record,” an asylum applicant’s fear
8 of persecution is “speculative at best.”). Shen could meet
9 her burden by establishing either “a reasonable possibility
10 . . . she would be singled out individually for persecution”
11 or “a pattern or practice . . . of persecution of a group of
12 persons similarly situated to [her] on account of . . .
13 political opinion.” 8 C.F.R. § 1208.13(b)(2)(iii); see also
14 Y.C., 741 F.3d at 332. Because Shen’s claim was based solely
15 on her activities in the United States, she had to show a
16 “reasonable possibility” that Chinese authorities were aware
17 or likely to become aware of her political activities.
18 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).
19 We find no error in the agency’s determination that Shen
20 failed to meet her burden.
21 The agency reasonably declined to credit Shen’s testimony
22 about a phone call her mother allegedly received from a
23 Chinese official warning Shen to “be quiet.” First, Shen had
3
1 no first-hand knowledge about the warning, and her mother was
2 an interested witness not subject to cross-examination. See
3 Y.C., 741 F.3d at 334 (upholding agency’s determination to
4 give “very little evidentiary weight” to unsworn letter from
5 petitioner’s husband). Second, Shen testified that her
6 mother sent her a letter containing this information, but she
7 did not produce the letter. See Chuilu Liu v. Holder, 575
8 F.3d 193, 198 n.6 (2d Cir. 2009) (“[A] failure to corroborate
9 can suffice, without more, to support a finding that an alien
10 has not met h[er] burden of proof.”).
11 Absent this warning, Shen’s only evidence of the
12 government’s awareness was her speculation that Chinese
13 authorities must be aware of her activities because they were
14 public. That speculation is insufficient to satisfy her
15 burden of proof. See Y.C., 741 F.3d at 333–34, 336–37
16 (explaining that published internet article and photographs
17 documenting petitioner’s participation in protests were
18 insufficient evidence of awareness, even where there was
19 evidence that the Chinese government monitors online
20 postings); see also Jian Xing Huang, 421 F.3d at 129. Nor
21 did the agency err in concluding that Shen failed to show a
22 pattern or practice of persecution of similarly situated pro-
23 democracy activists: Shen testified that she was a low-level
4
1 member of a pro-democracy organization in the United States,
2 and her country conditions evidence established only that the
3 Chinese government has detained and imprisoned high-profile
4 political dissidents whose political activism occurred
5 principally in China. In sum, there was nothing in the record
6 that established that low-level activists in the United
7 States, like Shen, face persecution in China. See Y.C., 741
8 F.3d at 334–35 (holding that persecution of high-profile
9 activist who headed two organizations was not evidence that
10 an individual who participated in demonstrations in United
11 States and published a single article would be persecuted).
12 Because Shen did not demonstrate that she has an
13 objectively reasonable well-founded fear of persecution, her
14 asylum claim fails. Ramsameachire, 357 F.3d at 178. Shen
15 was thus also unable to meet the higher standard required to
16 succeed on a claim for withholding of removal. See Lecaj v.
17 Holder, 616 F.3d 111, 119 (2d Cir. 2010). We dismiss the
18 petition as to Shen’s CAT claim because it is unexhausted.
19 See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED in part, and DISMISSED in part. As we have completed
22 our review, any stay of removal that the Court previously
23 granted in this petition is VACATED, and any pending motion
5
1 for a stay of removal in this petition is DISMISSED as moot.
2 Any pending request for oral argument in this petition is
3 DENIED in accordance with Federal Rule of Appellate Procedure
4 34(a)(2), and Second Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
6