Gi Fu Xu v. Lynch

13-2220 Xu v. Lynch BIA Morace, IJ A089 080 556 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 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 15th day of September, two thousand fifteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 DEBRA ANN LIVINGSTON, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 GI FU XU, 14 Petitioner, 15 16 v. 13-2220 17 NAC 18 19 LORETTA E. LYNCH, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Giacchino J. Russo, Flushing, New 25 York. 26 27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 28 General; Terri J. Scadron, Assistant 29 Director; Hillel R. Smith, Attorney; 1 Office of Immigration Litigation, 2 United States Department of Justice, 3 Washington, D.C. 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 Gi Fu Xu, a native and citizen of China, seeks review 10 of a May 8, 2013 order of the BIA affirming the June 1, 2011 11 decision of an Immigration Judge (“IJ”), denying her asylum, 12 withholding of removal, and relief under the Convention 13 Against Torture (“CAT”). In re Gi Fu Xu, No. A089 080 556 14 (B.I.A. May 8, 2013), aff’g A089 080 556 (Immig. Ct. N.Y.C. 15 June 1, 2011). We assume the parties’ familiarity with the 16 underlying facts and procedural history in this case. 17 Under the circumstances of this case, we have reviewed 18 both the IJ’s and the BIA’s decisions “for the sake of 19 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 20 2008)(internal quotation marks omitted). The applicable 21 standards of review are well established. See 8 U.S.C. 22 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 23 510, 513 (2d Cir. 2009). 24 Here, the agency did not err in concluding that Xu 2 1 failed to demonstrate a well-founded fear of persecution on 2 account of her sister’s membership in the Chinese Democracy 3 and Justice Party (“CDJP”). Absent past persecution, an 4 alien may establish eligibility for asylum by demonstrating 5 a well-founded fear of future persecution. See 8 C.F.R. 6 § 1208.13(b)(2). To establish a well-founded fear of 7 persecution, an applicant must show that she subjectively 8 fears persecution and that this fear is objectively 9 reasonable. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 10 (2d Cir. 2004). 11 Xu has never asserted that she herself is a member of 12 the CDJP, that Chinese government officials believe that she 13 is involved with the CDJP, or that officials have shown any 14 interest in harming her based on her sister’s activities. 15 Therefore, the agency reasonably found her claim of a well- 16 founded fear speculative. See Lecaj v. Holder, 616 F.3d 17 111, 117 (2d Cir. 2010) (finding that a “speculative 18 anxiety” does not make a fear of persecution objectively 19 reasonable); Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) 20 (holding that alien’s fear is not objectively reasonable if 21 it lacks “solid support in the record” and is “speculative 22 at best”). 3 1 Moreover, Xu’s claim is further undercut by the fact 2 that her family members have remained in China unharmed 3 since her niece was questioned by police in 2008. See 4 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999). 5 Accordingly, the IJ did not err in finding that Xu failed to 6 establish a well-founded fear of being singled out for 7 persecution on account of her sister’s CDJP activities. 8 As Xu argues, an applicant need not “provide evidence 9 that there is a reasonable possibility he or she would be 10 singled out individually for persecution if . . . [t]he 11 applicant establishes that there is a pattern or practice in 12 his or her country of nationality . . . of persecution of a 13 group of persons similarly situated to the applicant.” 14 8 C.F.R. § 1208.13(b)(2)(iii)(A). The BIA has provided that 15 a “pattern or practice” of persecution is the “systemic or 16 pervasive” persecution of a group. In re A-M-, 23 I. & N. 17 Dec. 737, 741 (B.I.A. 2005). 18 The BIA properly declined to address Xu’s pattern or 19 practice argument because she did not raise it before the 20 IJ. See In re J-Y-C-, 24 I & N Dec. 260, 261 n. 1 (BIA 21 2007). However, even if this argument were properly before 22 this Court, it fails. Contrary to Xu’s contention, neither 4 1 the IJ nor the background reports found a pattern or 2 practice of persecution of individuals whose family members 3 are suspected of opposing the government. 4 Accordingly, because the agency reasonably found that 5 Xu failed to demonstrate a well-founded fear of persecution 6 on account of her sister’s CDJP activities, it did not err 7 in denying her applications for asylum and withholding of 8 removal, and for CAT relief, as those claims were based on 9 the same factual predicate. See Paul v. Gonzales, 444 F.3d 10 148, 156-57 (2d Cir. 2006). 11 For the foregoing reasons, the petition for review is 12 DENIED. 13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16 17 5