Wenyu Li v. Holder , 399 F. App'x 623 ( 2010 )

09-2995-ag
Li v. Holder
BIA
Weisel, IJ
A099 654 826
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 2nd day of November, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 PETER W. HALL,
11 Circuit Judges.
12 _______________________________________
13
14 WENYU LI,
15 Petitioner,
16
17 v. 09-2995-ag
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New
26 York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Anthony P. Nicastro, Senior
30 Litigation Counsel; Yanal Yousef,
31 Trial Attorney, Office of
32 Immigration Litigation, Civil
33 Division, United States Department
34 of Justice, Washington, D.C.
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
4 is DENIED.
5 Petitioner Wenyu Li, a native and citizen of China,
6 seeks review of a June 12, 2009, order of the BIA affirming
7 the November 13, 2007, decision of Immigration Judge (“IJ”)
8 Robert D. Weisel denying Li’s application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Wenyu Li, No. A099 654 826
11 (B.I.A. June 12, 2009), aff’g No. A099 654 826 (Immig. Ct.
12 N.Y. City Nov. 13, 2007). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as supplemented by the BIA’s decision. See
17 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
20 F.3d 510, 513 (2d Cir. 2009).
21 As a preliminary matter, Li has not meaningfully
22 challenged the agency’s determinations that: (1) he was not
2
1 subject to past persecution; (2) he failed to establish
2 eligibility for CAT relief; and (3) his experiences with
3 China’s family planning policies do not establish his
4 eligibility for asylum or withholding of removal.
5 Accordingly, we do not review those findings. See Yueqing
6 Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).
7 Li does challenge the determination that he did not
8 establish a well-founded fear of persecution based on his
9 parents’ practice of Falun Gong and his Christianity.
10 Substantial evidence supports the agency’s conclusion that
11 Li failed to demonstrate a well-founded fear of future
12 persecution. The agency credited his testimony that his
13 parents were Falun Gong practitioners and that he was a
14 Christian, but found that Li did not have a well-founded
15 fear of persecution as a result. Li asserts that this was
16 error because the Country Reports show that those believed
17 to be Falun Gong practitioners or Christians are subject to
18 persecution in China.
19 In the absence of past persecution, an asylum applicant
20 must show that he or she has a well-founded fear of future
21 persecution by showing that he or she subjectively fears
22 persecution and that this fear is objectively reasonable.
3
1 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
2 To demonstrate objective reasonableness, the applicant must
3 show that a “reasonable person in the petitioner’s
4 circumstances would fear persecution if returned to his
5 native country.” Huang v. INS, 421 F.3d 125, 128 (2d Cir.
6 2005). A fear is objectively reasonable “even if there is
7 only a slight, though discernible, chance of persecution.”
8 Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000).
9 Addressing Li’s claim of persecution based on his
10 religion, the agency reasonably found that, while
11 historically many Christians have been persecuted in China,
12 Li had not established that he would himself be persecuted
13 or unable to practice there, particularly considering the
14 fact that his family did practice Christianity in China for
15 many years. Li points to the repression of other Christians
16 in China and the government’s closure of his local church
17 because it harbored Falun Gong practitioners. However, Li
18 has not shown with specific facts that there is persecution
19 of Christians in his locality or that he would be singled
20 out for persecution. See Huang, 421 F.3d at 128 (noting
21 that an applicant must demonstrate that a “reasonable person
22 in the petitioner’s circumstances would fear persecution if
23 returned to his native country” (emphasis added)). The fact
4
1 that Li has practiced Christianity in China since birth
2 without being subject to persecution suggests that he will
3 not face future persecution.
4 The agency also reasonably found that Li had not shown
5 that the government had any interest in persecuting him
6 based on his parents’ Falun Gong beliefs. Li argues that
7 the agency erroneously failed to consider whether the
8 Chinese authorities imputed to him the political opinions of
9 his parents. However, the agency did consider practice of
10 Falun Gong by the parents, but determined that Li’s fear of
11 persecution on that basis was not objectively reasonable.
12 The fact that Li’s church was shut down because it provided
13 shelter to Falun Gong practitioners does not establish that
14 he, as an individual, has been singled out as a suspected
15 Falun Gong practitioner. See id. Similarly, the
16 authorities’ treatment of Li after his parents’
17 disappearance does not show that they suspect him of
18 practicing Falun Gong. Although the police questioned him
19 in an effort to locate his parents, he was never detained,
20 mistreated, or brutalized. Li asserted that an excessive
21 fine was imposed for his family planning violation by reason
22 of his parents’ Falun Gong practice; but he provided no
23 evidence to support that contention or to show that the fine
5
1 constituted persecution. See Guan Shan Liao v. U.S. Dep’t
2 of Justice, 293 F.3d 61, 70 (2d Cir. 2002).
3 Given the lack of evidence of past persecution and the
4 lack of evidence that someone in Li’s particular
5 circumstances would be persecuted, the agency reasonably
6 found that Li failed to sustain his burden of proving a
7 well-founded fear of future persecution and thus failed to
8 establish his eligibility for asylum. See 8 C.F.R.
9 § 1208.13; Huang, 421 F.3d at 128. Li therefore necessarily
10 failed to meet the higher burden required to succeed on a
11 claim for withholding of removal. See Paul v. Gonzales, 444
12 F.3d 148, 156 (2d Cir. 2006); Gomez v. INS, 947 F.2d 660,
13 665 (2d Cir. 1991).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
25
26
6