15-2721
Tang v. Lynch
BIA
Zagzoug, IJ
A205 043 333
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
31st day of August, two thousand sixteen.
PRESENT:
JON O. NEWMAN,
DENNIS JACOBS,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
JINFEN TANG,
Petitioner,
v. 15-2721
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Mouren Wu, New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Anthony
C. Payne, Assistant Director; Lauren
E. Fascett, 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 Jinfen Tang, a native and citizen of the
People’s Republic of China, seeks review of an August 4, 2015,
decision of the BIA affirming a January 2, 2014, decision of
an Immigration Judge (“IJ”) denying Tang’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Jinfen Tang, No. A205 043 333
(B.I.A. Aug. 4, 2015), aff’g No. A205 043 333 (Immig. Ct. N.Y.
City Jan. 2, 2014). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
We have reviewed the IJ’s decision as modified by the BIA.
See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
(2d Cir. 2005). Accordingly, we do not address the IJ’s
pretermission of Tang’s asylum application as untimely because
the BIA declined to affirm that ruling. Id. As a result, the
denial of the application for asylum, as well as the denial of
the claims for withholding of removal and relief under CAT, will
be considered. Supporting denial of those claims are the
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agency’s adverse credibility determination and the conclusion
that Tang failed to establish a pattern or practice of
persecution of Christians. The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); See Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
We first note a serious deficiency in petitioner’s brief.
Although the Federal Rules of Appellate Procedure require an
appellant’s brief to contain “a concise statement of the case
setting out the facts relevant to the issues submitted for
review, with appropriate references to the record,” FRAP
28(a)(6), the relevant section of petitioner’s brief reads in
full as follows:
IV. Statement of Facts Relevant to the Issues Presented for Review
The facts in this case are disputed since the IJ found Petitioner
incredible and the BIA affirmed the IJ’s decision.
Petitioner based her asylum application upon her fear of future
persecution by the Chinese government for her religious activities.
A.R. 76-87.
Br. for Petitioner 5. Obviously saying only that the facts are
disputed is a totally inadequate way of “setting out the facts.”
We have previously warned the bar that submission of an
inadequate brief risks the imposition of sanctions. “Counsel
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is cautioned that the future filings of such an inadequate
submission will be grounds not only for rejection of the brief
but for formal reprimand or other sanction.” Shunfu Li v.
Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). We repeat that
admonition in this case.
The IJ found Tang’s testimony “replete with evasive
responses, unresponsive responses, [and] rote memorized
responses.” CAR 79. The record sufficiently supports this
assessment of her testimony. The adverse credibility
determination is further supported by an inconsistency between
Tang’s application and her testimony. The application stated
she had been detained for ten days between June 13 and June 23.
CAR 319-20. She testified, however, that she was both arrested
and released on June 13. Then she testified that both her arrest
and release occurred on June 23. Also supporting the IJ’s
credibility finding is the lack of reasonably available
corroboration – testimony from relatives who Tang said were
aware of her arrest in China and her pastor who could have
corroborated her church attendance in the United States.
The adverse credibility determination is dispositive of Tang’s
asylum claim to the extent it is based on past persecution or
4
future persecution on account of the Chinese government’s
awareness of her Christianity. Moreover, the adverse
credibility determination is dispositive of withholding of
removal and CAT relief to the extent those forms of relief were
based on these grounds. Paul v. Gonzales, 444 F.3d 148, 156-57
(2d Cir. 2006).
The remaining question before us is whether Tang showed
that the Chinese government has a pattern or practice of
persecuting Christians. “[T]o establish a well-founded fear
of persecution in the absence of any [credible] evidence of past
persecution, an alien must make some showing that authorities
in [her] country of nationality are either aware of [her]
activities or are likely to become aware of [her] activities.”
Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).
An alien may make this showing by “prov[ing] the existence of
‘a pattern or practice in his or her country . . . of persecution
of a group of persons similarly situated to the applicant.’”
Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554, 564 (2d Cir. 2006)
(quoting 8 C.F.R. § 208.13(b)(2)(iii)). To establish a pattern
or practice of persecution of a particular group, a petitioner
must demonstrate that the harm to that group is “systemic or
5
pervasive.” In re A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005);
see Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007) (deferring
to BIA’s standard).
The agency reasonably concluded that Tang failed to
establish a pattern or practice of persecution. The 2012 State
Department report in the record states that there are between
23 and 67 million Protestants in China, and that government
repression of unregistered religious groups is sporadic, with
local authorities in parts of the country tacitly approving of
unregistered religious practice. This evidence does not
establish that Tang’s religious activities will be discovered.
See Santoso v. Holder, 580 F.3d 110, 112 (2d Cir. 2009).
Moreover, the agency reasonably required locality-specific
evidence of persecution in Tang’s home province of Fujian.
Jian Hui Shao v. Mukasey, 546 F.3d 138, 149 (2d Cir. 2008). The
2012 State Department report does not mention any persecution
in Fujian, and the 2010 China Aid study Tang submitted reported
only one raid on a house church in that province. This evidence
does not establish “systemic or pervasive” persecution. In re
A-M-, 23 I. & N. Dec. at 741. Accordingly, the agency
reasonably concluded that Tang failed to show that the Chinese
6
government has a pattern or practice of persecuting Christians.
Because Tang is unable to show a well-founded fear of
persecution, as needed to make out an asylum claim, she is
necessarily unable to meet the higher standard required to
succeed on claims for withholding of removal or CAT relief.
Paul, 444 F.3d at 156.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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