16-823
Jiang v. Sessions
BIA
Loprest, IJ
A200 804 159
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 28th day of June, two thousand seventeen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 XIUPING JIANG,
14 Petitioner,
15
16 v. 16-823
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lewis G. Hu, New York, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Jessica
27 E. Burns, Senior Litigation Counsel;
28 John F. Stanton, Trial Attorney,
29 Office of Immigration Litigation,
30 United 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 is
4 DENIED.
5 Petitioner Xiuping Jiang, a native and citizen of the
6 People’s Republic of China, seeks review of a February 29, 2016,
7 decision of the BIA affirming an October 9, 2014, decision of
8 an Immigration Judge (“IJ”) denying Jiang’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Xiuping Jiang, No. A200 804 159
11 (B.I.A. Feb. 29, 2016), aff’g No. A200 804 159 (Immig. Ct. N.Y.C.
12 Oct. 9, 2014). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and the BIA’s opinions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). The applicable standards of review are well
18 established. 8 U.S.C. § 1252(b)(4)(B); Weng v. Holder, 562
19 F.3d 510, 513 (2d Cir. 2009). As discussed below, the agency
20 did not err in concluding that Jiang failed to establish a
21 well-founded fear of persecution.
2
1 Absent past persecution, an alien may establish
2 eligibility for asylum by demonstrating a well-founded fear of
3 future persecution, which is “a subjective fear that is
4 objectively reasonable.” Zheng v. Mukasey, 552 F.3d 277, 284
5 (2d Cir. 2009)(quoting Tambadou v. Gonzales, 448 F.3d 298, 302
6 (2d Cir. 2006); see also Y.C. v. Holder, 741 F.3d 324, 332 (2d
7 Cir. 2013) (“For an asylum claim, the applicant must show a
8 reasonable possibility of future persecution.” (internal
9 quotation marks omitted)). “An asylum applicant can show a
10 well-founded fear of future persecution in two ways: (1) by
11 demonstrating that he or she ‘would be singled out individually
12 for persecution’ if returned, or (2) by proving the existence
13 of a ‘pattern or practice in [the] . . . country of
14 nationality . . . of persecution of a group of persons
15 similarly situated to the applicant’ and establishing his or
16 her ‘own inclusion in, and identification with, such group.’”
17 Y.C., 741 F.3d at 332 (quoting 8 C.F.R. § 1208.13(b)(2)(iii))
18 (alterations and omissions in original).
19 First, the agency did not err in concluding that Jiang
20 failed to show a reasonable possibility that she would be
21 singled out individually for persecution. See Huang v. INS,
3
1 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid
2 support in the record,” a fear of persecution is not objectively
3 reasonable and is “speculative at best.”). “[T]o establish a
4 well-founded fear of persecution in the absence of any evidence
5 of past persecution, an alien must make some showing that
6 authorities in [her] country of nationality are either aware
7 of [her] activities or likely to become aware of [her]
8 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d
9 Cir. 2008). As the agency concluded, Jiang failed to make this
10 showing because she did not assert that Chinese authorities are
11 aware of her religious practice. Nor did she demonstrate that
12 Chinese authorities are likely to become aware of her current
13 religious practice in the United States or her prospective
14 practice in China. Jiang presented little evidence of her
15 religious practice in the United States, calling no witnesses
16 from either church she attended and providing no details about
17 how the Chinese government became aware of her sister’s practice
18 of Christianity. Contrary to Jiang’s arguments on appeal, the
19 IJ did not err in affording diminished weight to the letters
20 from Jiang’s mother and sister. See Xiao Ji Chen v. U.S. Dep’t
21 of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (the weight afforded
4
1 to an applicant’s evidence “lie[s] largely within the
2 discretion of the IJ” (internal quotation marks omitted));
3 Y.C., 741 F.3d at 334 (upholding agency’s determination that
4 letter from relative in China was entitled to limited weight
5 because it was unsworn and submitted by an interested witness).
6 And the IJ recognized the distinction between authorized and
7 unauthorized churches at the outset, but reasonably found
8 Jiang’s evidence insufficient given country conditions
9 evidence that tens of millions of people in China practice
10 Christianity in unauthorized churches.
11 Second, the agency did not err in concluding that Jiang
12 failed to establish a pattern or practice of persecution of
13 Christians in China. To establish a pattern or practice of
14 persecution against a particular group, an applicant must
15 demonstrate that the harm to that group is “systemic or
16 pervasive.” In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005);
17 see Mufied v. Mukasey, 508 F.3d 88, 92-93 (2d Cir. 2007)
18 (accepting the BIA’s standard as reasonable, while noting that
19 “[w]ithout further elaboration [the standard does not make
20 clear] how systemic, pervasive, or organized persecution must
21 be before the Board would recognize it as a pattern or
5
1 practice”). Here, the agency reasonably found that religious
2 activities, such as attending underground churches or
3 proselytizing, are not punished or restricted nationwide.
4 The State Department’s 2012 International Religious Freedom
5 Report on China stated, for example, that “[i]n some parts of
6 the country . . . local authorities tacitly approved of the
7 activities of unregistered groups and did not interfere with
8 them,” and it did not discuss any incidents of religious
9 persecution in Jiang’s home province of Fujian. The 2010
10 ChinaAid Annual Report lists incidents of religious persecution
11 by province and identifies only one in Fujian province. Given
12 the nationwide variation and dearth of documented persecution
13 in Jiang’s home province, the agency reasonably concluded that
14 Jiang failed to establish a pattern or practice of persecution
15 of Christians in China. Cf. Jian Hui Shao v. Mukasey, 546 F.3d
16 138, 142, 149 (2d Cir. 2008)(finding no error in BIA’s
17 evidentiary framework that an applicant demonstrate that
18 enforcement of family planning policy is carried out in his or
19 her local area in a manner that would give rise to a well-founded
20 fear of persecution because of local variations in the
21 enforcement of that policy); see also Santoso v. Holder, 580
6
1 F.3d 110, 112 (2d Cir. 2009) (affirming agency’s finding of no
2 pattern or practice of persecution of Catholics in Indonesia
3 where evidence showed that religious violence was not
4 nationwide and that Catholics in many parts of the country were
5 free to practice their faith).
6 Because the agency reasonably found that Jiang failed to
7 demonstrate a well-founded fear of persecution, it did not err
8 in denying asylum or in concluding that Jiang necessarily failed
9 to meet the higher burden required for withholding of removal
10 or CAT relief. See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d
11 Cir. 2010).
12 Finally, we lack jurisdiction to review Jiang’s challenge
13 to the Government’s refusal to support a joint remand to the
14 BIA. See 8 U.S.C. § 1252(g) (“[N]o court shall have
15 jurisdiction to hear any cause or claim by or on behalf of any
16 alien arising from the decision or action by the Attorney
17 General to commence proceedings, adjudicate cases, or execute
18 removal orders against any alien.”); see also Wayte v. United
19 States, 470 U.S. 598, 607 (1985) (observing “that the decision
20 to prosecute is particularly ill-suited to judicial review”).
7
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
8