Dong v. Lynch , 630 F. App'x 102 ( 2015 )

13-2155
Dong v. Lynch
BIA
Hom, IJ
A088 021 371
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of November, two thousand fifteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RALPH K. WINTER,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 BIN DONG,
14 Petitioner,
15
16 v. 13-2155
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Ernesto H. Molina, Jr.,
27 Assistant Director; Drew C.
28 Brinkman, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Bin Dong, a native and citizen of China, seeks review
6 of a May 6, 2013, decision of the BIA affirming an
7 Immigration Judge’s (“IJ”) September 2, 2011, denial of
8 asylum, withholding of removal, and relief under the
9 Convention Against Torture (“CAT”). In re Bin Dong, No.
10 A088 021 371 (B.I.A. May 6, 2013), aff’g No. A088 021 371
11 (Immig. Ct. N.Y. City Sept. 2, 2011). We assume the
12 parties’ familiarity with the underlying facts and
13 procedural history of this case.
14 Under the circumstances of this case, we have reviewed
15 both the BIA’s and IJ’s decisions. Zaman v. Mukasey, 514
16 F.3d 233, 237 (2d Cir. 2008) (per curiam). The applicable
17 standards of review are well established. 8 U.S.C.
18 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
19 (2d Cir. 2009).
20 The only issue for our review is whether Dong has met
21 his burden with respect to future persecution. To establish
22 eligibility, Dong must show that he has a well-founded fear
23 of future persecution on account of his religion. 8 U.S.C.
2
1 § 1101(a)(42). To establish this fear, Dong must show that
2 he subjectively fears persecution and that his fear is
3 objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d
4 169, 178 (2d Cir. 2004). There must be “solid support” in
5 the record; absent such support, a fear is “speculative at
6 best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d
7 Cir. 2005). To sustain his burden, Dong must either show
8 that he will be “singled out individually for persecution”
9 or establish “a pattern or practice” of persecution of
10 “similarly situated” people. 8 C.F.R.
11 § 1208.13(b)(2)(C)(iii)(A).
12 Dong alleges that he attended an underground Christian
13 gathering in China that was raided by police, he escaped,
14 went into hiding, and learned from his parents that the
15 police were looking for him. Dong states that he fears
16 future persecution if he returns to China because of his
17 practice of Christianity. However, Dong’s testimony, alone,
18 is insufficient to satisfy his burden because he did not
19 suffer past harm and the agency found no solid evidence of
20 future harm. Jian Xing Huang, 421 F.3d at 129. Although
21 letters from Dong’s parents and friends from China are in
22 the record, the agency was not required to credit them
3
1 because they were unsworn, and the authors were not
2 available for cross-examination. Xiao Ji Chen v. U.S. DOJ,
3 471 F.3d 315, 342 (2d Cir. 2006) (the weight accorded to
4 documentary evidence lies largely within agency’s
5 discretion); In re of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209,
6 215 (BIA 2010) (giving diminished weight to letters from
7 relatives because they were from interested witnesses not
8 subject to cross-examination), rev’d on other grounds by Hui
9 Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
10 Additionally, the letters do not provide sufficient detail.
11 The letter from his parents says police continue to look for
12 Dong, but without any description of how often or reference
13 to any specific actions or visits. And, the letter from his
14 fellow practitioner says names were given to police, but
15 does not specify that Dong’s name was; it also includes no
16 detail about how often this individual is required to report
17 to police or what reporting entails. The letter from the
18 friend who hid Dong does not contain any information
19 pertaining to future harm; it only states that the friend
20 hid Dong in his apartment until Dong fled China.
21 The agency also reasonably determined that the country
22 reports did not establish a pattern or practice of
23 persecution of Christians who practice at underground
4
1 churches. According to the 2010 International Religious
2 Freedom Report, in some parts of China, officials tacitly
3 allowed underground church activities without incident,
4 while in others, church leaders and adherents could be
5 arrested and detained. As conditions differ throughout
6 China, Dong would have to show how officials in his village,
7 Fuzhou, or province, Fujian, react to underground church
8 activities, and whether officials take action against
9 churchgoers. Jian Hui Shao v. Mukasey, 546 F.3d 138, 142,
10 149, 169-72 (2d Cir. 2008) (finding no error in the BIA’s
11 evidentiary framework requiring an applicant to demonstrate
12 that similarly situated individuals face persecution in his
13 or her local area when enforcement varies by region). As
14 the record lacks evidence showing how officials in Fuzhou or
15 Fujian Province treat underground churches and their
16 members, Dong has not shown that he will be targeted for
17 persecution or that there exists pattern or practice of
18 persecution of similarly situated people. 8 C.F.R.
19 § 1208.13(b)(2)(C)(iii)(A). Thus, he has not met his burden
20 of showing that his alleged fear is objectively reasonable.
21 Jian Xing Huang, 421 F.3d at 129.
22 As Dong has failed to establish his eligibility for
23 asylum it follows that he cannot satisfy the higher standard
5
1 for withholding of removal or CAT relief. Paul v. Gonzales,
2 444 F.3d 148, 155-56 (2d Cir. 2006).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
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