Cheng Dian Zheng v. Holder

11-4771 Zheng v. Holder BIA Morace, IJ A094 939 055 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 27th day of September, two thousand twelve. 5 6 PRESENT: 7 BARRINGTON D. PARKER, 8 RICHARD C. WESLEY, 9 DENNY CHIN, 10 Circuit Judges. 11 ______________________________________ 12 13 CHENG DIAN ZHENG, 14 15 Petitioner, 16 11-4771 17 v. NAC 18 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 22 Respondent. 23 ______________________________________ 24 25 FOR PETITIONER: Dehai Zhang, Flushing, New York. 26 27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 28 Attorney General; Ernesto H. Molina, 29 Jr., Assistant Director; Yanal H. 30 Yousef, Trial Attorney, Office of 31 Immigration Litigation, Civil 32 Division, United States Department 33 of Justice, Washington, D.C. 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 Cheng Dian Zheng, a native and citizen of 6 the People’s Republic of China, seeks review of an October 7 31, 2011 decision of the BIA affirming the October 28, 2009 8 decision of Immigration Judge (“IJ”) Philip L. Morace, which 9 denied his application for asylum, withholding of removal, 10 and relief under the Convention Against Torture (“CAT”). In 11 re Cheng Dian Zheng, No. A094 939 055 (B.I.A. Oct. 31, 12 2011), aff’g No. A094 939 055 (Immig. Ct. N.Y. City Oct. 28, 13 2009). We assume the parties’ familiarity with the 14 underlying facts, procedural history, and issues presented 15 for review. 16 Under the circumstances of this case, we review the 17 decision of the IJ as modified and supplemented by the BIA. 18 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005); 19 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 20 (2d Cir. 2005). The applicable standards of review are 21 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng 22 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because Zheng 23 does not challenge the agency’s denial of CAT relief, we 2 1 have reviewed only the denial of asylum and withholding of 2 removal. 3 Zheng argues that the IJ erred by finding that he 4 failed to demonstrate a well-founded fear of future 5 persecution based on his practice of Christianity and desire 6 to continue his religious practices in China if he were 7 removed. To demonstrate a well-founded fear of future 8 persecution, an asylum applicant must show that he 9 subjectively fears persecution and that this fear is 10 objectively reasonable. See 8 U.S.C. § 1101(a)(42); Kyaw 11 Zwar Tun v. INS, 445 F.3d 554, 564 (2d Cir. 2006). An 12 asylum applicant can demonstrate that a fear is objectively 13 reasonable by either: (1) offering evidence that “he . . . 14 would be singled out individually for persecution”; or 15 (2) by proving the existence of “a pattern or practice of 16 persecution of a group of persons similarly situated to the 17 applicant.” 8 C.F.R. §§ 1208.13(b)(2), 1208.16(b)(2). The 18 applicant must also demonstrate “that authorities in his 19 country of nationality are either aware of his activities or 20 likely to become aware of his activities.” Hongsheng Leng 21 v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). Here, the IJ 22 reasonably found that Zheng failed to establish an 23 objectively reasonable basis for fearing persecution in 24 China. 3 1 Although Zheng’s evidence indicated that Chinese 2 authorities arrested and detained members of unregistered 3 churches, the IJ did not err in requiring evidence from 4 Zheng’s native Fujian Province because the evidence 5 indicated that the treatment of unregistered churches varied 6 widely between regions. See Jian Hui Shao v. Mukasey, 546 7 F.3d 138, 142, 149 (2d Cir. 2008). As the IJ reasonably 8 found, the fact that Zheng continued to attend unregistered 9 churches without incident for more than six years after his 10 church had been raided undermined the reasonableness of his 11 fear that he would be persecuted in Fujian Province. See 12 Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) 13 (per curiam); cf. Melgar de Torres v. Reno, 191 F.3d 307, 14 313 (2d Cir. 1999). 15 Moreover, despite evidence that Chinese authorities 16 “monitor” unregistered churches and prominent religious 17 leaders, the IJ reasonably found that Zheng failed to 18 establish that Chinese authorities were aware or likely to 19 become aware of his religious beliefs and practice given his 20 ability to practice in an unregistered church before 21 departing China and his assertion that he is merely a 22 member, not a leader, of the house church movement. The IJ 23 therefore did not err in finding that Zheng had failed to 24 establish his eligibility for asylum. See 8 U.S.C. 4 1 § 1101(a)(42); Hongsheng Leng, 528 F.3d at 142-43; Jian Xing 2 Huang, 421 F.3d at 129. Because Zheng was unable to show 3 the objective likelihood of persecution needed to make out 4 an asylum claim, he was necessarily unable to meet the 5 higher standard required to succeed on a claim for 6 withholding of removal. See Ramsameachire v. Ashcroft, 357 7 F.3d 169, 178 (2d Cir. 2004). 8 For the foregoing reasons, the petition for review is 9 DENIED. As we have completed our review, any stay of removal 10 that the Court previously granted in this petition is VACATED, 11 and any pending motion for a stay of removal in this petition 12 is DISMISSED as moot. Any pending request for oral argument 13 in this petition is DENIED in accordance with Federal Rule of 14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 15 34.1(b). 16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19 20 5