Wang v. Whitaker ( 2018 )


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  •     17-641
    Wang v. Whitaker
    BIA
    Poczter, IJ
    A206 577 637
    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 17th day of December, two thousand eighteen.
    PRESENT:
    GUIDO CALABRESI,
    PETER W. HALL,
    DEBRA ANN LIVINGSTON,
    Circuit Judges.
    _____________________________________
    YAO WANG,
    Petitioner,
    v.                                        17-641
    NAC
    MATTHEW G. WHITAKER, ACTING
    UNITED STATES ATTORNEY GENERAL,
    Respondent.
    _____________________________________
    FOR PETITIONER:                     Adedayo O. Idowu, New York, NY.
    FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
    Attorney General; Mary Jane
    Candaux, Assistant Director; Remi
    da Rocha-Afodu, Trial Attorney,
    Office of Immigration Litigation,
    United States Department of
    Justice, Washington, DC.
    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 Yao Wang, a native and citizen of the People’s
    Republic of China, seeks review of a February 9, 2017,
    decision of the BIA affirming a June 16, 2016, decision of an
    Immigration       Judge   (“IJ”)   denying    asylum,   withholding   of
    removal, and relief under the Convention Against Torture
    (“CAT”).     In re Yao Wang, No. A206 577 637 (B.I.A. Feb. 9,
    2017), aff’g No. A206 577 637 (Immig. Ct. N.Y. City Jun. 16,
    2015).       We    assume   the    parties’    familiarity   with     the
    underlying facts and procedural history in this case.
    We have reviewed both the IJ’s and the BIA’s opinions
    “for the sake of completeness.”               Wangchuck v. Dep’t of
    Homeland Security, 
    448 F.3d 524
    , 528 (2d Cir. 2006).                  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).
    Absent past persecution, an applicant, like Wang, may
    establish eligibility for asylum by demonstrating a well-
    founded fear of future persecution, 
    8 C.F.R. § 1208.13
    (b)(2),
    which must be both subjectively credible and objectively
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    reasonable, Ramsameachire v. Ashcroft, 
    357 F.3d 169
    , 178 (2d
    Cir. 2004).         To establish a well-founded fear, an applicant
    must show either a reasonable possibility that she would be
    singled out for persecution or that the country of removal
    has     a    pattern      or   practice      of     persecuting     individuals
    similarly situated to her.                
    8 C.F.R. § 1208.13
    (b)(2)(iii).
    “[I]n       order    to   establish     eligibility          for   relief    based
    exclusively on activities undertaken after h[er] arrival in
    the   United        States,    [Wang]    must       make   some    showing     that
    authorities . . . are (1) aware of h[er] activities or
    (2) likely to become aware of h[er] activities.”                        Hongsheng
    Leng v. Mukasey, 
    528 F.3d 135
    , 143 (2d Cir. 2008).
    The agency did not err in finding that Wang failed to
    establish      a    well-founded      fear     of    being    singled    out   for
    persecution on account of her religion. First, Wang did not
    allege that Chinese officials are aware of her conversion to
    Mormonism in the United States or her current religious
    practice.           She   conceded      that      she   attended    underground
    Christian church services twice in China but was never harmed
    or persecuted for those activities.                  Although Wang testified
    that while in the United States, she spread the gospel over
    the phone with her friends and relatives in China, none of
    them, including her friend Zi Jia who attends church in China,
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    have had problems with the Chinese government.                    See Melgar
    de Torres v. Reno, 
    191 F.3d 307
    , 313 (2d Cir. 1999) (finding
    future fear diminished when similarly situated individuals
    are   able   to    live    unharmed   in    asylum    applicant’s      native
    country).
    Second, as to whether Chinese officials are likely to
    discover her practice, Wang testified that she would attend
    an underground church, and continue to preach the gospel and
    distribute religious materials to relatives, friends, and
    colleagues.        Given this limited testimony, the dearth of
    evidence     in    the    record    that    Mormons    are       treated    any
    differently than other Christian denominations, and record
    evidence that there are tens of millions of Christians in
    China (many of whom practice in unregistered churches), Wang
    did not demonstrate that Chinese officials are likely to
    discover her practice as required to state an objectively
    reasonable well-founded fear of persecution.                 See Hongsheng
    Leng, 
    528 F.3d at 142-43
    ; Jian Xing Huang v. U.S. INS, 
    421 F.3d 125
    , 129 (2d Cir. 2005) (absent “solid support in the
    record,” a petitioner’s fear is not objectively reasonable
    and is “speculative at best”).
    For these same reasons, the agency also did not err in
    determining       that    Wang   failed    to   establish    a    pattern   or
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    practice of persecution of similarly situated individuals.
    The country conditions evidence in the record established
    that tens of millions of individuals practice in unregistered
    churches in China, and that in some areas such practice is
    tolerated without interference.         Therefore, Wang failed to
    demonstrate “systemic or pervasive” persecution of similarly
    situated Mormons or Christians sufficient to demonstrate a
    pattern or practice of persecution in China.           In re A-M-, 
    23 I. & N. Dec. 737
    , 741 (B.I.A. 2005); Santoso v. Holder, 
    580 F.3d 110
    , 112 & n.1 (2d Cir. 2009); Jian Hui Shao v. Mukasey,
    
    546 F.3d 138
    , 165-66, 174 (2d Cir. 2008) (finding that the
    BIA did not err in requiring localized evidence of persecution
    when the record reflected wide variances in how population
    control   policies   are   understood    and   enforced   throughout
    China).
    Wang’s remaining arguments fail.     The IJ did not question
    the sincerity of Wang’s religious beliefs but instead found
    that Wang’s testimony as to her future practice was unspecific
    and   speculative,   and   thus   insufficient    to    satisfy   the
    objective standard for showing a reasonable possibility of
    persecution.   See Jian Xing Huang, 
    421 F.3d at 129
    .          The IJ
    also sufficiently considered the record.          The IJ expressly
    stated that she had considered the full record and her
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    decision addresses much of Wang’s evidence.              See Jian Hui
    Shao, 
    546 F.3d at 169
     (noting that the BIA need not “expressly
    parse or refute on the record each individual argument or
    piece   of    evidence   offered    by   the   petitioner”   (citations
    omitted)).
    Because the agency reasonably found that Wang failed to
    demonstrate a well-founded fear of persecution as required
    for asylum, it did not err in also denying withholding of
    removal and CAT relief, which require a greater likelihood of
    harm.   See Lecaj v. Holder, 
    616 F.3d 111
    , 119 (2d Cir. 2010).
    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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