20-867
Feng v. Garland
BIA
Straus, IJ
A200 165 371
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 21st day of December, two thousand twenty-
5 one.
6
7 PRESENT:
8 JOHN M. WALKER, JR.,
9 RICHARD C. WESLEY,
10 MICHAEL H. PARK,
11 Circuit Judges.
12 _____________________________________
13
14 XIAO MING FENG,
15 Petitioner,
16
17 v. 20-867
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: H. Danny Kao, Kao & Associates
25 PC, Flushing, NY.
26
27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
28 Assistant Attorney General; Cindy
29 S. Ferrier, Assistant Director;
1 Andrew N. O’Malley, Senior
2 Litigation Counsel, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Xiao Ming Feng, a native and citizen of the
12 People’s Republic of China, seeks review of a February 12,
13 2020 decision of the BIA affirming an April 9, 2018 decision
14 of an Immigration Judge (“IJ”) denying asylum, withholding of
15 removal, and relief under the Convention Against Torture
16 (“CAT”). In re Xiao Ming Feng, No. A200 165 371 (B.I.A. Feb.
17 12, 2020), aff’g No. A200 165 371 (Immig. Ct. Hartford Apr.
18 9, 2018). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 We have reviewed both the IJ’s and the BIA’s opinions.
21 See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528
22 (2d Cir. 2006). The standards of review are well
23 established. See 8 U.S.C. § 1252(b)(4)(B); Hongsheng Leng
24 v. Mukasey, 528 F.3d 135, 141 (2d Cir. 2008) (reviewing
25 factual findings for substantial evidence and questions of
2
1 law de novo). Because Feng does not challenge the agency’s
2 denial of relief insofar as his claims were based on his
3 resistance to the family planning policy, we address only the
4 agency’s determination that he failed to establish a well-
5 founded fear of persecution on account of his practice of
6 Christianity in the United States. See Zhang v. Gonzales,
7 426 F.3d 540, 541 n.1 (2d Cir. 2005).
8 Absent past persecution, an alien may establish asylum
9 eligibility by demonstrating a well-founded fear of future
10 persecution. 8 C.F.R. § 1208.13(b)(2); Ramsameachire v.
11 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). To do so, an
12 applicant must show either a reasonable possibility that he
13 will be “singled out individually for persecution” or that
14 the country of removal has a “pattern or practice” of
15 persecuting “similarly situated” individuals. 8 C.F.R.
16 § 1208.13(b)(2)(iii). When an applicant’s claim is based on
17 activities in the United States, the applicant “must make
18 some showing that authorities in his country of nationality
19 are either aware of his activities or likely to become aware
20 of his activities.” Hongsheng Leng, 528 F.3d at 143.
21 Feng did not assert that Chinese officials are aware of
22 his religious practice. Furthermore, the agency was not
3
1 compelled to conclude that there is a reasonable possibility
2 that Chinese officials will become aware of his religious
3 practice based solely on his church attendance and his single
4 interaction with family planning officials a decade ago,
5 particularly given that the country conditions evidence in
6 the record reflects that tens of millions of Christians
7 practice their religion in nongovernmental churches in China.
8 See Hongsheng Leng, 528 F.3d at 143. The agency also did not
9 err in determining that Feng failed to demonstrate “systemic
10 or pervasive” persecution of similarly situated Christians
11 sufficient to demonstrate a pattern or practice of
12 persecution given that restrictions on the religious practice
13 of the millions of Christians in China varies by region. In
14 re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005); see also
15 8 C.F.R. § 1208.13(b)(2)(iii).
16 Accordingly, the agency reasonably concluded that Feng
17 failed to establish a well-founded fear of persecution. See
18 8 C.F.R. § 1208.13(b)(2). That finding was dispositive of
19 asylum, withholding of removal, and CAT relief. See Lecaj
20 v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010) (an applicant
21 who fails to show sufficient risk of harm for asylum
22 “necessarily fails” to meet the higher burdens for
4
1 withholding of removal and CAT relief).
2 For the foregoing reasons, the petition for review is
3 DENIED. All pending motions and applications are DENIED and
4 stays VACATED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
5