Zhang v. Barr ( 2020 )

19-611
Zhang v. Barr
BIA
Nelson, IJ
A 205 440 564
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 18th day of December, two thousand twenty.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
SHULIN ZHANG,
Petitioner,
v. 19-611
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Mike P. Gao, Law Offices of Mike P. Gao, P.C.,
Flushing, NY.
FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney
General; Carl McIntyre, Assistant Director; Nancy
Ellen Friedman, Senior Litigation Counsel, 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 GRANTED and the case is REMANDED.
Petitioner Shulin Zhang, a native and citizen of the People’s Republic of China, seeks
review of a February 22, 2019 decision of the BIA affirming a December 14, 2017 decision of an
Immigration Judge (“IJ”) denying Zhang’s application for asylum, withholding of removal, and
relief under the Convention Against Torture. In re Shulin Zhang, No. A 205 440 564 (B.I.A. Feb.
22, 2019), aff’g No. A 205 440 564 (Immig. Ct. N.Y. City Dec. 14, 2017). We assume the parties’
familiarity with the underlying facts and procedural history in this case.
The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4); see
also Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir. 2009) (reviewing factual findings underlying
burden of proof determinations under the substantial evidence standard); Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009) (reviewing application of law to undisputed fact de novo).
Zhang did not claim past persecution, but he asserted a fear of future persecution on account
of his activities with the China Democratic Party (“CDP”) in the United States. An applicant may
establish eligibility for asylum by demonstrating “that he has a well-founded fear of future
persecution, which requires that the alien present credible testimony that he subjectively fears
persecution and establish that his fear is objectively reasonable.” Ramsameachire v. Ashcroft, 357
F.3d 169, 178 (2d Cir. 2004); see also 8 C.F.R. § 1208.13(b)(2). An applicant must show either a
reasonable possibility that he “would be singled out” for persecution or that the country of removal
has a “pattern or practice” of persecuting individuals “similarly situated” to him.
Id. § 1208.13(b)(2)(iii). Where, as here, an applicant expresses a fear based on activities
undertaken solely in the United States, he “must make some showing that authorities in his country
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of nationality are either aware of his activities or likely to become aware of his activities.”
Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). 1
“The testimony of the applicant may be sufficient to sustain the applicant’s burden without
corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is
credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a
refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also Chuilu Liu, 575 F.3d at 196–97. “In determining
whether the applicant has met [his] burden, the trier of fact may weigh the credible testimony along
with other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(ii). Moreover, the trier of fact may
require corroboration of “otherwise credible testimony,” and “such evidence must be provided
unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” Id.“No court shall reverse a determination made by a trier of fact with respect to the availability of
corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact is compelled to
conclude that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4).
We do not disturb the agency’s finding that Zhang provided insufficient evidence that the
Chinese government was or is aware of his political activities in the United States. The agency did
not err in declining to credit an unsworn letter from Zhang’s wife in China recounting how Chinese
officials threatened and harassed his family in 2012 due to his political activities. See Y.C. v.
Holder, 741 F.3d 324, 334 (2d Cir. 2013) (upholding BIA’s decision not to credit letter from
applicant’s spouse to corroborate government awareness of activities in United States); see also
Hongsheng Leng, 528 F.3d at 143. The agency also did not err in declining to credit an
unauthenticated police summons. Zhang alleged that the police required his daughter to report to
them to discuss his political activities, but the summons did not mention Zhang’s name or
1
In quoting cases, we omit internal citations, quotation marks, footnotes, and alterations.
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activities, and he produced no statement from his daughter to provide foundation for the document.
See Shunfu Li v. Mukasey, 529 F.3d 141, 149 (2d Cir. 2008).
The events of 2012, however, are relevant primarily to whether Chinese officials “were
aware” or “are aware” of Zhang’s association with the CDP. Y.C., 741 F.3d at 333–34. After
discounting this evidence, the IJ did not address Zhang’s additional evidence that Chinese officials
were “likely to become aware” of his CDP affiliation in the future, id., and that he would therefore
be threatened with persecution if removed to China. Specifically, Zhang had submitted (1) photos
showing him attending pro-democracy CDP protests, (2) pro-democracy CDP articles he published
online under his real name, (3) a 2015 State Department report stating that the Chinese government
monitors and targets CDP members, and (4) a list of individuals currently incarcerated in China
for political reasons. The IJ’s ruling did not meaningfully discuss this evidence. Rather, the IJ
concluded that “[e]ven when there is some evidence that the Chinese government monitors the
Internet, such evidence was found insufficient to meet the respondent’s burden of proof.” Joint
App’x 11.
We respectfully conclude that was legal error. We therefore remand so that the agency can
more fully consider whether “the Chinese government is likely to become aware of [the
petitioner’s] membership in the CDP after his return to China.” Shi Jie Ge v. Holder, 588 F.3d 90,
96 (2d Cir. 2009); see also id. at 95–96 (rejecting a BIA ruling that required a CDP member to
prove that “China tracks expatriate political activists,” because “a petitioner may also demonstrate
a well-founded fear of future persecution by demonstrating that his involvement in a banned
organization may become known after his return.”); Hongsheng Leng, 528 F.3d at 142–43
(remanding to agency because it did not consider whether the Chinese government could find out
about the petitioner’s CDP activities if removed and because the agency did not consider items in
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the record, including a State Department report).
For the foregoing reasons, the petition for review is GRANTED and the case is
REMANDED for further proceedings consistent with this order. All pending motions and
applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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