17-750
Yu v. Sessions
BIA
Loprest, IJ
A200 165 457
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 6th day of June, two thousand eighteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 FENG YU,
14 Petitioner,
15 v. 17-750
16 NAC
17 JEFFERSON B. SESSIONS III,
18 UNITED STATES ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONER: Alexander G. Rojas, New York, NY.
23
24 FOR RESPONDENT: Chad A. Readler, Acting Assistant
25 Attorney General; Jeffrey R.
26 Meyer, Imran R. Zaidi, Attorneys,
27 Office of Immigration Litigation,
28 United States Department of
29 Justice, 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.
5 Petitioner Feng Yu, a native and citizen of the People’s
6 Republic of China, seeks review of a February 17, 2017,
7 decision of the BIA affirming a February 9, 2016, decision of
8 an Immigration Judge (“IJ”) denying Yu’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Feng Yu, No. A 200
11 165 457 (B.I.A. Feb. 17, 2017), aff’g No. A 200 165 457
12 (Immig. Ct. N.Y. City Feb. 9, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 In lieu of filing a brief, the Government moves for
16 summary denial of Yu’s petition for review. Summary denial
17 is warranted only if a petition is frivolous, Pillay v. INS,
18 45 F.3d 14, 17 (2d Cir. 1995), and Yu has filed his merits
19 brief. Accordingly, we treat the Government’s motion as a
20 response to that brief, and deny the petition.
2
1 Under the circumstances of this case, we have reviewed
2 both the BIA’s and IJ’s decisions “for the sake of
3 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
4 524, 528 (2d Cir. 2006). We review the agency’s legal
5 conclusions de novo and its factual findings for substantial
6 evidence. Y.C. v. Holder, 741 F.3d 325, 332 (2d Cir. 2013).
7 “[T]he administrative findings of fact are conclusive unless
8 any reasonable adjudicator would be compelled to conclude to
9 the contrary.” 8 U.S.C. § 1252(b)(4)(B).
10 Yu had the burden of proving a well-founded fear of
11 persecution on account of either his political activism with
12 the U.S. branch of the China Democracy Party (“CDP”) or his
13 practice of Christianity in the United States. 8 U.S.C.
14 §§ 1101(a)(42), 1158(b)(1)(B)(i). To do this, he was
15 required to show that he subjectively feared persecution and
16 that his fear was objectively reasonable. Ramsameachire v.
17 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). The objective
18 component can be satisfied either by establishing “a
19 reasonable possibility that [he] would be singled out
20 individually for persecution . . . or “a pattern or practice
21 . . . of persecution of a group of persons similarly situated
3
1 to the applicant . . . .” 8 C.F.R. § 1208.13(b)(2)(iii);
2 Y.C., 741 F.3d at 332.
3 To demonstrate that he would be individually targeted
4 for persecution, Yu first had to show a reasonable possibility
5 that Chinese authorities were either already aware, or likely
6 to become aware, of his religious or pro-democracy
7 activities. Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d
8 Cir. 2008). The agency was permitted to discount letters
9 from Yu’s mother and brother in China describing Chinese
10 police visits. Y.C., 741 F.3d at 334. Absent the letters,
11 the agency reasonably concluded that the possibility that
12 Chinese officials would be aware of Yu’s activities based on
13 his participation in protests or publication of online
14 articles was too speculative to warrant relief. See id.
15 (Chinese government’s monitoring of internet postings does
16 not mean that it “is aware of every anti-Communist or pro-
17 democracy piece of commentary published online.”); Jian Xing
18 Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (absent “solid
19 support in the record,” an applicant’s fear of future
20 persecution is “speculative at best”).
4
1 Regarding Yu’s pattern or practice claim, the agency
2 reasonably concluded that he was not similarly situated to
3 CDP members who were arrested because those members were more
4 politically active than Yu and engaged in activities in China,
5 whereas Yu joined the CDP in the United States. Y.C., 741
6 F.3d at 334-37. And the agency reasonably relied on the
7 State Department’s 2013 religious freedom report, which
8 reflects that the Chinese government’s policies toward
9 Christians and underground churches vary by province and does
10 not include any reports of arrests in Yu’s home province
11 (Jilin), to conclude that Yu did not establish a pattern or
12 practice of persecution of similarly situated Christians.
13 Jian Hui Shao v. Mukasey, 546 F.3d 138, 159-62, 174 (2d Cir.
14 2008) (upholding BIA’s requirement that applicant demonstrate
15 that officials in his local area enforce a government policy
16 when evidence demonstrates local variations in enforcement of
17 that policy).
18 Because Yu failed to meet his burden of proof for asylum,
19 he necessarily failed to meet the higher burdens for
20 withholding of removal and CAT relief. Lecaj v. Holder, 616
21 F.3d 111, 119-20 (2d Cir. 2010). We do not address the
5
1 timeliness of the asylum application or the agency’s firm
2 resettlement finding because the burden determination is
3 dispositive. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
4 (“As a general rule courts and agencies are not required to
5 make findings on issues the decision of which is unnecessary
6 to the results they reach.”).
7 Finally, we reject Yu’s due process argument. Yu
8 contends that the IJ deprived him of due process by stating
9 the following immediately before issuing his oral decision:
10 “I feel that if I actually were to stretch things and grant
11 relief, I think that the Department would have grounds for
12 appeal and that they’d succeed. So in, other words, it
13 wouldn’t do any good to try to push it any other way.” Taken
14 in context, however, it is clear that the IJ’s remarks were
15 intended to explain his decision to deny relief because Yu
16 had not met his evidentiary burden. For instance, the IJ
17 also stated, “I don’t think Mr. Yu’s case, the evidence
18 presented meets his burden to demonstrate eligibility for
19 asylum under our country’s laws. And for that reason I do
20 feel that the application needs to be denied.” The IJ did
6
1 not consider any improper factors or deny Yu a full and fair
2 hearing.
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, the Government’s
5 motion for summary denial is DENIED as moot. Any pending
6 request for oral argument in this petition is DENIED in
7 accordance with Federal Rule of Appellate Procedure 34(a)(2),
8 and Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
7