15-1291
Zhang v. Lynch
BIA
Poczter, IJ
A200 703 839
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
4th day of August, two thousand sixteen.
PRESENT:
JOSÉ A. CABRANES,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
MIN BO ZHANG, AKA MIN LIANG ZHANG,
Petitioner,
v. 15-1291
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, Yerman & Associates,
LLC, New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General;
Jennifer P. Williams, Senior
Litigation Counsel; Colette J.
Winston, 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 Min Bo Zhang, a native and citizen of the
People’s Republic of China, seeks review of a March 30, 2015,
decision of the BIA affirming a September 3, 2013, decision of
an Immigration Judge (“IJ”) denying him asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Min Bo Zhang, No. A200 703 839 (B.I.A. Mar. 30,
2015), aff’g No. A200 703 839 (Immig. Ct. N.Y. City Sept. 3,
2013). 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,
i.e., minus the IJ’s finding regarding past persecution, as to
which the BIA reasonably found that Zhang waived any challenge.
See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
(2d Cir. 2005); Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
104, 122 (2d Cir. 2007). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); see also
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
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Family Planning Claim
It is undisputed that Zhang is not eligible for asylum
solely on the basis of his wife’s forced family planning
procedures. See Shi Liang Lin v. U.S. Dep’t of Justice, 494
F.3d 296, 309-10 (2d Cir. 2007). Nevertheless, he can still
qualify for asylum by demonstrating that (1) he engaged in
“resistance” to the family planning policy, and (2) he has a
well-founded fear of suffering persecution as a direct result
of his resistance. See 8 U.S.C. § 1101(a)(42); see also Shi
Liang Lin, 494 F.3d at 313.
Even assuming Zhang demonstrated “other resistance” based
on his expression of opposition to the family planning policy
and refusal to pay the fine levied against him and his wife,
see Shi Liang Lin, 494 F.3d at 312-13 & n.14, the agency did
not err in determining that he failed to establish a reasonable
possibility that officials would target him on account of that
resistance because his wife, who is similarly situated to this
extent, has not been arrested and remains unharmed in China
despite the unpaid fine. See Melgar de Torres v. Reno, 191 F.3d
307, 313 (2d Cir. 1999). The only remaining reason for Zhang
to fear arrest would be for pushing a government official. The
IJ did not err in concluding that such an arrest would constitute
prosecution as opposed to persecution on account of a protected
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ground. See Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 239
(2d Cir. 1992).
Because Zhang failed to demonstrate a well-founded fear of
persecution on account of a protected ground, the agency did
not err in denying him asylum, withholding of removal, and CAT
relief insofar as those claims were based on his resistance to
the family planning policy. See Paul v. Gonzales, 444 F.3d 148,
156-57 (2d Cir. 2006).
Political Opinion Claim
“[T]o 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 country of nationality are
either aware of his activities or likely to become aware of his
activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d
Cir. 2008). There is no merit to Zhang’s contention that the
agency applied a heightened burden or otherwise erred in
concluding that he failed to satisfy this requirement. See id.
Zhang admitted that the Chinese government is not aware of his
membership in the Party for Freedom and Democracy in China,
which he joined while in the United States. And he did not
demonstrate a reasonable possibility that authorities are
likely to become aware of his membership based solely on his
participation in monthly group protests in New York. See Y.C.
4
v. Holder, 741 F.3d 324, 334 (2d Cir. 2013); see also Jian Xing
Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence
of solid support in the record . . . , [an applicant’s] fear
is speculative at best.”).
Finally, the agency did not err in concluding that Zhang
failed to demonstrate a pattern or practice of persecution
against similarly situated individuals. Although the 2012
Department of State’s Human Rights Report does not mention
Zhang’s political party or the Chinese government’s
mistreatment of its members, the IJ reasonably considered the
report with respect to the treatment of members of the Chinese
Democracy Party and democracy activists generally. See Y.C.,
741 F.3d at 333. Moreover, the IJ recognized that the report
discussed the detention of several pro-democracy activists, but
nevertheless reasonably found that it did not demonstrate a
pattern or practice of persecution against individuals, such
as Zhang, who participate in a few pro-democracy political
activities abroad. See id. at 335.
Because Zhang failed to demonstrate that authorities are
likely to become aware of his political activities in the United
States or a pattern or practice of persecution of similarly
situated individuals, the agency reasonably concluded that he
failed to establish a well-founded fear of persecution. See
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id. at 334-35; Hongsheng Leng, 528 F.3d at 142. That finding
was dispositive of asylum, withholding of removal, and CAT
relief insofar as those claims were based on his political
activities. See Paul, 444 F.3d at 156-57.
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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