Gao v. Barr ( 2020 )

17-3960
Gao v. Barr
BIA
Poczter, IJ
A097 814 028
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 27th day of January, two thousand twenty.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JON O. NEWMAN,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
TONG GAO,
Petitioner,
v. 17-3960
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Anthony P. Nicastro,
Assistant Director; Vanessa M.
Otero, 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 Tong Gao, a native and citizen of the People’s
Republic of China, seeks review of a November 13, 2017,
decision of the BIA affirming a February 2, 2017, decision of
an Immigration Judge (“IJ”) denying Gao’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Tong Gao, No. A
097 814 028 (B.I.A. Nov. 13, 2017), aff’g No. A 097 814 028
(Immig. Ct. N.Y. City Feb. 2, 2017). 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 Sec., 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); Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009). The agency did not err in concluding
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that Gao failed to satisfy his burden of proving a well-
founded fear of future persecution in China on account of his
practice of Christianity in the United States.
Absent past persecution, an alien may establish
eligibility for asylum by demonstrating a well-founded fear
of future persecution. See 8 C.F.R. § 1208.13(b)(2);
Hongsheng Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir. 2008).
To do so, 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 similarly situated individuals. See 8 C.F.R.
§ 1208.13(b)(2)(iii); Hongsheng Leng, 528 F.3d at 142. When
an alien seeks to establish eligibility for relief based
solely on activities commenced in the United States, he “must
make some showing that authorities in his country of
nationality are either aware of his activities or likely to
become aware of his activities.” Hongsheng Leng, 528 F.3d
at 143.
The agency did not err in determining that Gao did not
establish that he would be singled out for persecution upon
return to China. Gao argued that he would be singled out for
proselytizing because of two incidents, that the police
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searched for one of his friends for attending a family church
in 2007 and later arrested his sister-in-law during a house
church gathering in in 2014. However, his argument is
speculative. Neither Gao’s friend nor his sister-in-law
described harm sufficiently severe to constitute persecution.
See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341
(2d Cir. 2006) (harm must rise above “mere harassment”).
Neither described being apprehended for proselytizing, as Gao
intends to do. Nor did Gao state whether he planned to attend
his sister-in-law’s house church. Moreover, the incident
involving Gao’s friend occurred approximately ten years prior
to Gao’s merits hearing. These two incidents years apart do
not establish that Gao’s fear of persecution is well founded.
The agency also did not err in finding that Gao failed
to establish a pattern or practice of persecution of similarly
situated Christians. The country conditions evidence
reflects that there are tens of millions of Christians in
China, more than 40 million of whom practice outside of state
sanctioned churches and that the authorities’ treatment of
unregistered groups varies across the country. And the
evidence describes few incidents of persecution in Gao’s home
province of Fujian, the most recent of which was in 2010.
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This evidence describing varying levels of mistreatment with
little documentation specific to Gao’s home province is not
sufficient to establish a pattern or practice of persecution.
See In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005)
(declining to find a pattern or practice of persecution when
the threat of harm was not “so systemic or pervasive as to
amount to a pattern or practice of persecution”).
Accordingly, because the agency reasonably found that
Gao failed to demonstrate a well-founded fear of persecution,
it did not err in also denying withholding of removal and CAT
relief, as those forms of relief 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. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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