Zhao v. Wilkinson ( 2021 )

19-398
Zhao v. Wilkinson
BIA
Christensen, IJ
A208 617 791
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 4th day of February, two thousand twenty-one.
PRESENT:
ROSEMARY S. POOLER,
RICHARD J. SULLIVAN,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
SHOULONG ZHAO,
Petitioner,
v. 19-398
NAC
ROBERT M. WILKINSON, ACTING
UNITED STATES ATTORNEY GENERAL,
Respondent. 1
_____________________________________
FOR PETITIONER: Gerald Karikari, Karikari &
Associates, P.C., New York, NY.
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Acting Attorney General Robert M. Wilkinson is automatically
substituted for former Acting Attorney General Jeffrey A. Rosen
as Respondent.
FOR RESPONDENT: Linda S. Wernery, Assistant
Director; William C. Minick,
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
AND DECREED that this petition for review of a decision of
the Board of Immigration Appeals (“BIA”) is DENIED.
Petitioner Shoulong Zhao, a native and citizen of the
People’s Republic of China, seeks review of a January 30,
2019, decision of the BIA affirming a December 12, 2017,
decision of an Immigration Judge (“IJ”) denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Shoulong
Zhao, No. A208 617 791 (B.I.A. Jan. 30, 2019), aff’g No. A208
617 791 (Immig. Ct. N.Y. City Dec. 12, 2017). We assume the
parties’ familiarity with the underlying facts and procedural
history.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). “We review the
BIA's legal conclusions de novo, and its factual findings .
. . under the substantial evidence standard.” Y.C. v.
2
Holder, 741 F.3d 324, 332 (2d Cir. 2013) (internal quotation
marks omitted); see also 8 U.S.C. § 1252(b)(4)(B).
I. Past Persecution
While the Immigration and Nationality Act does not define
persecution, the BIA has defined it as “a threat to the life
or freedom of, or the infliction of suffering or harm upon,
those who differ in a way regarded as offensive.” Baba v.
Holder, 569 F.3d 79, 85 (2d Cir. 2009) (internal quotation
marks omitted); Matter of Acosta, 19 I. & N. Dec. 211, 222
(BIA 1985), overruled in part on other grounds by INS v.
Cardoza-Fonseca, 480 U.S. 421 (1987). Past persecution can
be based on harm other than threats to life or freedom,
“includ[ing] non-life-threatening violence and physical
abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir.
2006), but the harm must be sufficiently severe to rise above
“mere harassment,” Ivanishvili, 433 F.3d at 341; see also Mei
Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)
(“[P]ersecution is an extreme concept that does not include
every sort of treatment our society regards as offensive.”
(internal quotation marks omitted)). “[T]he difference
between harassment and persecution is necessarily one of
degree that must be decided on a case-by-case basis.”
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Ivanishvili, 433 F.3d at 341.
The agency did not err by determining that Zhao’s past
harm did not rise to the level of persecution. Zhao testified
that police beat his back with a baton, but that the pain was
not bad and that he did not seek medical treatment afterwards.
Zhao also testified that he disarmed one of the officers and
used a police baton to beat both of them, fracturing one
officer’s arm and incapacitating the other. Based on this
testimony, the agency reasonably determined that Zhao’s harm
did not rise to the level of persecution because he (1) was
not seriously injured, and (2) did not seek medical treatment.
See Jian Qiu Liu v. Holder, 632 F.3d 820, 821–22 (2d Cir.
2011) (upholding agency’s determination that applicant’s past
harm — being slapped in the face, punched repeatedly, and
subsequently detained for two days — did not rise to the level
of persecution).
Zhao’s reliance on Beskovic for the proposition that even
a minor beating can rise to the level of persecution is
misplaced. In Beskovic, we held that “[t]he BIA must . . .
be keenly sensitive to the fact that a ‘minor beating’ or,
for that matter, any physical degradation designed to cause
pain, humiliation, or other suffering, may rise to the level
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of persecution if it occurred in the context of an arrest or
detention on the basis of a protected ground.” 467 F.3d at
226 (emphasis added). But Zhao was not arrested or detained
when the police hit him on the back, and the agency considered
the context of his beating. See id. In any event,
regardless of whether harm is inflicted upon an individual
engaged in a protected act, an applicant has the burden to
show that the harm was sufficiently severe. See 8 U.S.C.
§ 1158(b)(1)(B); Ivanishvili, 433 F.3d at 341. Here, the
level of harm is less severe than that in Jian Qiu Liu, where
the applicant was “punched . . . repeatedly in the face,
chest, and back” by several family planning officials before
being detained for two days. 632 F.3d at 821.
II. Future Persecution
Absent past persecution, a noncitizen may establish
eligibility for asylum by demonstrating a well-founded fear
of future persecution. See 8 C.F.R. § 1208.13(b)(2);
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
To do so, an applicant must show either a reasonable
possibility that he will 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.
5
§ 1208.13(b)(2)(iii); In re A-M-, 23 I. & N. Dec. 737, 741
(BIA 2005) (explaining that a pattern or practice of
persecution involves the “systemic or pervasive” persecution
of a group). “In the absence of solid support in the record,”
a fear of persecution is not well founded and “is speculative
at best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d
Cir. 2005). Zhao does not challenge the agency’s finding
that he will be singled out for assaulting two police officers
rather than for practicing his religion; therefore, he has
waived review of that determination. See Norton v. Sam’s
Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
sufficiently argued in the briefs are considered waived and
normally will not be addressed on appeal.”).
The agency reasonably concluded that Zhao did not show a
pattern or practice of persecution of Christians. In support
of this argument, Zhao relied solely on the State Department’s
2017 International Religious Freedom Report (the “IRF
Report”), arguing that it showed that the Chinese government
considers Christianity to be an evil cult. However, the IRF
Report was more nuanced, stating that the Chinese government
considers 13 specific Christian groups to be evil cults. But
Zhao does not allege that he belongs to one of those groups.
6
On appeal, Zhao also argues that an updated 2018
Religious Freedom Report shows that China has a pattern of
detaining, torturing, and harassing Christians. But that
report, which was released in June 2019, was not before the
agency at the time of the BIA’s January 2019 decision. See
8 U.S.C. § 1252(b)(4)(A) (limiting judicial review to “the
administrative record on which the order of removal is
based”). Zhao could have moved to reopen in the BIA for
consideration of that report. See 8 C.F.R. § 1003.2(c)
(providing for motions to reopen for consideration of new
evidence before the BIA); Xiao Xing Ni v. Gonzales, 494 F.3d
260, 262 (2d Cir. 2007) (“[W]e should not exercise [any
inherent power to remand] if: [i] the basis for the remand is
an instruction to consider documentary evidence that was not
in the record before the BIA; and [ii] the agency regulations
set forth procedures to reopen a case before the BIA for the
taking of additional evidence.”). In any event, that report
does not identify widespread persecution of Christians in
Fujian Province, Zhao’s home region. Thus, even if we had
inherent authority to remand, Zhao has not identified
“sufficiently compelling circumstances” to do so on the basis
of this report. Xiao Xing Ni, 494 F.3d at 267 (internal
7
quotation marks omitted).
Likewise, the 2017 IRF Report before the BIA did not
identify government action against Christians in Fujian
Province, other than the 20-day detention of a Catholic
bishop. Further, the 2017 IRF Report suggested that millions
of Protestants practice in unregistered churches in China.
It also explained that authorities in some areas allow
unregistered churches to hold services, although authorities
in other areas target such churches for abuse. Given the
large number of Christians practicing in unregistered
churches, the fact that restrictions on their activities vary
by region, and the lack of evidence that Christians in Fujian
Province face heightened restrictions, the agency did not err
in determining that Zhao did not establish a pattern or
practice of persecution of similarly situated Christians.
See 8 C.F.R. § 1208.13(b)(2)(iii); Santoso v. Holder, 580
F.3d 110, 112 & n.1 (2d Cir. 2009) (upholding denial of
pattern or practice claim where evidence reflected that
violence was not nationwide and that Catholics in many parts
of Indonesia were free to practice their faith); Jian Hui
Shao v. Mukasey, 546 F.3d 138, 149, 169–70 (2d Cir. 2008)
(finding no error in requiring locality-specific evidence
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where the record reflects that conditions vary by region).
III. Torture
Zhao’s argument that he is more likely than not to be
tortured if he returns to China given his past encounter with
the police and China’s pattern and practice of persecuting
Christians is likewise unavailing. As explained above, the
agency did not err in rejecting Zhao’s pattern or practice
claim. Further, even if he is imprisoned in China based on
his past encounter with the police, he has not submitted
particularized evidence as needed to meet his burden of
showing that he is more likely than not to be tortured in
prison. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d
156, 160 (2d Cir. 2005) (concluding that “particularized
evidence” beyond State Department reports is necessary to
establish eligibility for CAT protection for applicant
alleging she would be tortured for leaving China illegally);
Jian Xing Huang, 421 F.3d at 129 (“In the absence of solid
support in the record . . . , [an applicant’s] fear is
speculative at best.”); Mu-Xing Wang v. Ashcroft, 320 F.3d
130, 144 (2d Cir. 2003) (an applicant for CAT relief must
show a likelihood of torture in “his particular alleged
circumstances” as a military deserter). Specifically, on
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appeal to the BIA and in his brief in this Court, Zhao did
not identify any evidence that someone in his particular
circumstances is likely to be tortured in prison.
At Zhao’s request, the IJ took administrative notice of
the State Department’s 2016 Human Rights Report for China,
which states that former prisoners have reported being
tortured in China and notes that torture is a “systemic”
problem. But the report does not state that prisoners
arrested for attacking the police are targeted for torture.
Thus, the IJ reasonably concluded that this report did not
show a likelihood of torture for someone in Zhao’s particular
circumstances. See Mu Xiang Lin, 432 F.3d at 160; Mu-Xing
Wang, 320 F.3d at 144. And the administrative record does
not contain any other evidence to support Zhao’s claim.
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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