18-1979
Yao v. Barr
BIA
Douchy, IJ
A201 133 766
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 23rd day of December, two thousand nineteen.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 CHRISTOPHER F. DRONEY,
9 MICHAEL H. PARK,
10 Circuit Judges.
11 _____________________________________
12
13 QIUMEI YAO,
14 Petitioner,
15
16 v. 18-1979
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant
26 Attorney General; Holly M. Smith,
27 Senior Litigation Counsel; Nehal
28 H. Kamani, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 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 Qiumei Yao, a native and citizen of the
6 People’s Republic of China, seeks review of a June 18, 2018,
7 decision of the BIA affirming a July 14, 2017, decision of an
8 Immigration Judge (“IJ”) denying Yao asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Qiumei Yao, No. A201 133 766 (B.I.A. June 18,
11 2018), aff’g No. A201 133 766 (Immig. Ct. N.Y. City July 14,
12 2017). We assume the parties’ familiarity with the
13 underlying facts and procedural history.
14 We have reviewed both the IJ’s and the BIA’s opinions
15 “for the sake of completeness.” Wangchuck v. Dep’t of
16 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
17 applicable standards of review are well established. See
18 8 U.S.C. § 1252(b)(4)(B); Y.C. v. Holder, 741 F.3d 324, 332
19 (2d Cir. 2013). The agency did not err in concluding that
20 Yao failed to satisfy her burden of proving a well-founded
21 fear of future persecution in China on account of her practice
22 of Christianity.
2
1 Absent past persecution, an alien may establish
2 eligibility for asylum by demonstrating a well-founded fear
3 of future persecution. 8 C.F.R. § 1208.13(b)(2); Hongsheng
4 Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir. 2008). To do so,
5 an applicant must show either a reasonable possibility that
6 she will be singled out for persecution or that the country
7 of removal has a pattern or practice of persecuting similarly
8 situated individuals. 8 C.F.R. § 1208.13(b)(2)(iii);
9 Hongsheng Leng, 528 F.3d at 142. “[A]n alien must make some
10 showing that authorities in h[er] country of nationality are
11 either aware of h[er] activities or likely to become aware of
12 h[er] activities.” Id. at 143.
13 As an initial matter, we find no merit to Yao’s arguments
14 that the IJ applied an incorrect burden of proof,
15 mischaracterized her claim, and ignored her fear that she
16 will be persecuted for proselytizing in China. The IJ set
17 forth the correct well-founded-fear standard and recognized
18 that Yao’s claim was based on her assertions that she would
19 proselytize as well as attend an underground church in China.
20 The agency did not err in finding that Yao failed to
21 establish a well-founded fear of persecution because she did
22 not demonstrate that Chinese officials are aware of or likely
3
1 to become aware of her religious activities. Yao did not
2 assert that Chinese officials know about her religious
3 practice. As to whether Chinese officials are likely to
4 discover her religious activities, Yao asserted in her
5 application that she would attend an unregistered Christian
6 church in China and spread the gospel, and she testified that
7 she had heard from other religious practitioners that the
8 Chinese government persecutes Christians, but she did not
9 claim to know anyone personally who had experienced such
10 persecution. And, as the IJ noted, according to the State
11 Department’s International Religious Freedom Report, there
12 are 68 million Protestant Christians in China. As the State
13 Department Report further asserts, only 23 million out of
14 this group of 68 million practice in officially-recognized
15 churches. Given Yao’s failure to assert any specific basis
16 for the IJ to conclude that Chinese officials are likely to
17 become aware of her religious practice and the fact that there
18 are tens of millions of practicing Christians in China, Yao
19 did not establish an objectively reasonable fear of being
20 singled out for persecution. See Hongsheng Leng, 528 F.3d
21 at 143; see also Jian Xing Huang v. INS, 421 F.3d 125, 129
22 (2d Cir. 2005) (“In the absence of solid support in the record
4
1 . . . [an applicant’s] fear is speculative at best.”).
2 The agency also did not err in determining that Yao
3 failed to establish a pattern or practice of persecution of
4 similarly situated individuals. The IJ acknowledged that the
5 country-conditions evidence demonstrated that Chinese
6 government officials restrict religious activities and harass
7 and persecute religious practitioners in some areas of China.
8 As the IJ noted, however, the country-conditions evidence
9 also showed that many Christians practice their religion
10 without government interference in other areas of the
11 country. The IJ also reasonably relied on the absence of
12 evidence of harm befalling Christians in Yao’s home province
13 of Fujian. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 143,
14 149 (2d Cir. 2008) (finding no error in the agency’s
15 requirement that an applicant demonstrate a well-founded fear
16 of persecution specific to her local area when persecutory
17 acts vary according to locality). Given that restrictions
18 on Christian activities varied by region, the agency did not
19 err in determining that Yao failed to demonstrate “systemic
20 or pervasive” persecution of similarly situated Christians
21 sufficient to demonstrate a pattern or practice of
22 persecution. In re A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005);
5
1 see also 8 C.F.R. § 1208.13(b)(2)(iii).
2 Accordingly, the agency did not err in concluding that
3 Yao failed to establish a well-founded fear of persecution.
4 See 8 U.S.C. § 1158(b)(1)(B)(i); Hongsheng Leng, 528 F.3d at
5 142–43. That finding was dispositive of asylum, withholding
6 of removal, and CAT relief because all three claims were based
7 on the same factual predicate. Paul v. Gonzales, 444 F.3d
8 148, 156–57 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. All pending motions and applications are DENIED and
11 stays VACATED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
6