15-3988
Ni v. Sessions
BIA
Christensen, IJ
A201 138 813
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
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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”).
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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
14th day of September, two thousand seventeen.
PRESENT: REENA RAGGI,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________
QIUQUN NI,
Petitioner,
v. 15-3988
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.*
_____________________________________
FOR PETITIONER: Aminat Sabak, Law Offices of Yu &
Associates PLLC, New York, New York.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Jefferson B. Sessions, III is automatically
substituted for former Attorney General Loretta E. Lynch as
Respondent.
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FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Melissa
Neiman-Kelting, Senior Litigation
Counsel; Lori B. Warlick, 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 Qiuqun Ni, a native and citizen of China, seeks
review of the BIA’s November 23, 2015 affirmance of an
Immigration Judge’s (“IJ’s”) denial of Ni’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). See In re Qiuqun Ni, No. A201 138 813
(B.I.A. Nov. 23, 2015), aff’g No. A201 138 813 (Immig. Ct. N.Y.
City Apr. 3, 2014). For the reasons stated herein, we conclude
that the agency did not err in determining that Ni failed to
establish a well-founded fear of persecution based on her
membership in the China Democracy Party (“CDP”) in New York and
her pro-democracy activities in the United States.
Under the circumstances of this case, we review both the
BIA’s and IJ’s decisions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
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2006), applying well established standards of review, see
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009). In so doing, we assume the parties’
familiarity with the underlying facts and procedural history
of this case, which we reference only as necessary to explain
our decision to deny the petition.
Absent past persecution, an applicant may establish
eligibility for asylum by demonstrating a well-founded fear of
future persecution, which is a “subjective fear that is
objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552 F.3d
277, 284 (2d Cir. 2009) (internal quotation marks omitted); see
8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b)(2); see also Y.C.
v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“For an asylum
claim, the applicant must show a reasonable possibility of
future persecution.” (internal quotation marks omitted)). “An
asylum applicant can show a well-founded fear of future
persecution in two ways: (1) by demonstrating that he or she
‘would be singled out individually for persecution’ if
returned, or (2) by proving the existence of a ‘pattern or
practice in [the] . . . country of nationality . . . of
persecution of a group of persons similarly situated to the
applicant’ and establishing his or her ‘own inclusion in, and
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identification with, such group.’” Y.C. v. Holder, 741 F.3d
at 332 (quoting 8 C.F.R. § 1208.13(b)(2)(iii) (alterations in
original)).
First, the agency did not err in concluding that Ni failed
to show a reasonable possibility that she would be singled out
individually for persecution. See Jian Xing Huang v. INS, 421
F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid support
in the record” a fear of persecution is not objectively
reasonable and is “speculative at best.”). “Importantly, ‘to
establish a well-founded fear of persecution in the absence of
any evidence of past persecution, an alien must make some
showing that authorities in his [or her] country of nationality
are either aware of his [or her] activities or likely to become
aware of his [or her] activities.’” Y.C. v. Holder, 741 F.3d
at 332 (quoting Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
(2d Cir. 2008) (alterations in original)). Although Ni
submitted a letter from her mother stating that she had been
visited by police who were aware of Ni’s pro-democracy
activities in the United States, the agency reasonably gave this
letter diminished weight because it was unsworn and submitted
by an interested witness unavailable for cross-examination.
See id. at 334 (affirming agency’s determination that letter
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from relative in China was entitled to limited weight because
it was unsworn and submitted by an interested witness). Apart
from Ni’s own testimony about the police visit, which was not
based on personal knowledge, she submitted no other evidence
to show that Chinese authorities were aware of her CDP
activities in the United States. Indeed, the only evidence
that Ni adduced in support of her contention that Chinese
authorities were likely to become aware of her U.S. political
activities was her participation in protest demonstrations and
her online posting of three articles criticizing the Chinese
government. Upon consideration of this evidence, the agency
reasonably concluded that Ni’s claim was speculative. See Jian
Xing Huang v. INS, 421 F.3d at 129; Y.C. v. Holder, 741 F.3d
at 334.
Second, the agency did not err in concluding that Ni failed
to establish a pattern or practice of persecution of
similarly-situated individuals in China. To establish a
pattern or practice of persecution against a particular group,
an applicant must demonstrate that the harm to that group is
“systemic or pervasive.” In re A-M-, 23 I. & N. Dec. 737, 741
(B.I.A. 2005); see Mufied v. Mukasey, 508 F.3d 88, 92–93 (2d
Cir. 2007). Here, the agency correctly observed that Ni
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presented evidence of only two CDP leaders who were arrested
in China, and that Ni did not claim to be a party leader. The
agency therefore did not err in concluding that she failed to
show a pattern or practice of persecution of similarly-situated
individuals. See Y.C. v. Holder, 741 F.3d at 334-35 (affirming
agency’s denial of pattern or practice claim by low-level CDP
member).
Third, Ni faults the agency for denying her application for
her failure to submit reasonably available corroborating
evidence. The argument is meritless because the record shows
that the agency denied asylum based on Ni’s failure to carry
her burden of proof, not her failure to submit reasonably
available corroboration under 8 U.S.C. § 1158(b)(1)(B)(ii).
Accordingly, because the agency reasonably concluded that
Ni failed to demonstrate a well-founded fear of persecution,
it did not err in denying asylum or in determining that she
necessarily failed to meet the higher burden required for
withholding of removal or CAT relief. Y.C. v. Holder, 741 F.3d
at 335.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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