Chaohui Dong v. Garland ( 2023 )

20-2029
Chaohui Dong v. Garland
BIA
Thompson, IJ
A206 053 450
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.
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 24th day of April, two thousand
twenty-three.
PRESENT:
DEBRA ANN LIVINGSTON,
Chief Judge,
BETH ROBINSON,
ALISON J. NATHAN,
Circuit Judges.
_____________________________________
CHAOHUI DONG, AKA DONG
CHAOHUI,
Petitioner,
v. 20-2029
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, Esq., The Yerman Group,
LLC, New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney
General; Mary Jane Candaux, Assistant
Director; Nicole J. Thomas-Dorris, 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 in part and DISMISSED in part.
Petitioner Chaohui Dong (“Dong”), a native and citizen of the People’s
Republic of China, seeks review of a June 10, 2020 decision of the BIA affirming a
May 30, 2018 decision of an Immigration Judge (“IJ”) denying his applications for
asylum, withholding of removal, relief under the Convention Against Torture
(“CAT”), and cancellation of removal. In re Chaohui Dong, No. A 206 053 450
(B.I.A. June 10, 2010), aff’g No. A 206 053 450 (Immig. Ct. N.Y.C. May 30, 2018).
We assume the parties’ familiarity with the underlying facts and procedural
history.
We have considered both the IJ’s and the BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). We review the agency’s factual findings for substantial evidence and
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questions of law de novo. See Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).
“[T]he administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). Our review of the agency’s denial of cancellation of removal is
limited to constitutional claims and questions of law. Id. § 1252(a)(2)(B)(i), (D);
Mendez v. Holder, 566 F.3d 316, 319–22 (2d Cir. 2009).
I. Asylum, Withholding of Removal, and CAT Relief
Dong asserted a fear of persecution in China on account of his practice of
Christianity in the United States. Accordingly, he had the burden to establish an
“objectively reasonable” fear of future persecution. Ramsameachire v. Ashcroft, 357
F.3d 169, 178 (2d Cir. 2004); see also 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R.
§ 1208.13(b)(2). An applicant can demonstrate either (1) a “reasonable
possibility” that he “would be singled out individually for persecution” or (2) “a
pattern or practice” of persecution of “a group of persons similarly situated to the
applicant.” 8 C.F.R. § 1208.13(b)(2)(iii). “[T]o establish eligibility for relief based
exclusively on activities undertaken after his arrival in the United States, an alien
must make some showing that authorities in his country of nationality are (1)
aware of his activities” or (2) that there is a “reasonable possibility” that they will
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“become aware of his activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 138,
143 (2d Cir. 2008) (per curiam). The agency reasonably concluded that Dong
failed to meet his burden.
The record supports the IJ’s determinations that Dong would not regularly
attend church or preach the gospel in China. Dong conceded that in the United
States he has attended church less than once a month because of his work schedule.
He further explained that he did not switch churches to attend more regularly
because the one he attends registers attendance. Moreover, Dong has not
engaged in any public proselytizing in the United States. Accordingly, the IJ
reasonably inferred from this evidence that Dong would be unlikely regularly to
attend church or proselytize publicly in China. See Siewe v. Gonzales, 480 F.3d 160,
167 (2d Cir. 2007) (“Drawing inferences from direct and circumstantial evidence is
a routine and necessary task of any factfinder.”).
There is no merit to Dong’s argument that the IJ applied the higher
likelihood standard for withholding of removal. Although the IJ used the word
“likely,” the decision does not reflect that the IJ was improperly applying the more
stringent standard for withholding of removal, that persecution be “more likely
than not” to occur. 8 C.F.R. § 1208.16(b). The IJ’s decision is consistent with
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Hongsheng Leng: “Put simply, to establish a well-founded fear of persecution in the
absence of any evidence of past persecution, an alien 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. The appropriate burden of proof varies
according to the type of relief sought: an applicant must show a ‘clear probability’
in the withholding context, and only ‘a reasonable possibility’ in the asylum
context.” 528 F.3d at 143 (emphasis added; citation and internal quotation marks
omitted).
Contrary to Dong’s argument, the IJ considered Dong’s additional “less
public” religious activities, but reasonably concluded that, given the lack of
evidence that he would attend church regularly or engage in public activities, his
fear of future persecution based on the Chinese authorities becoming aware of his
religious practice was speculative. See Jian Xing Huang v. U.S. INS, 421 F.3d 125,
129 (2d Cir. 2005).
The record also supports the IJ’s determination that Dong failed to establish
a pattern or practice of persecution in his home province of Fujian. The State
Department report does not identify any incidents of persecution of Christians in
Fujian, the ChinaAid report reveals that one church was demolished, and none of
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the evidence reflects that ordinary church members are subject to persecution in
Fujian Province. See Jian Liang v. Garland, 10 F.4th 106, 117 (2d Cir. 2021) (holding
that absent past harm, an applicant’s fear of persecution as a Christian failed
because country conditions evidence did not speak to persecution in Fujian); Jian
Hui Shao v. Mukasey, 546 F.3d 138, 142, 149, 165 (2d Cir. 2008) (finding no error in
the agency’s requirement that an applicant demonstrate a well-founded fear of
persecution specific to his or her local area when persecutory acts vary according
to locality). Dong’s failure to establish an objectively reasonable fear of
persecution for asylum is also dispositive of withholding of removal and CAT
relief. See Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010) (holding that a failure
to show the fear of persecution required for asylum “necessarily” precludes
meeting the higher burden for withholding of removal and CAT relief).
II. Cancellation of Removal
To establish eligibility for cancellation of removal, Dong had to “establish[]
that [his] removal would result in exceptional and extremely unusual hardship to
[his] spouse, parent, or child, who is a citizen of the United States or an alien
lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). The
hardship to a qualifying relative “must be substantially beyond the ordinary
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hardship that would be expected when a close family member leaves this
country.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 (B.I.A. 2001) (citation and
internal quotation marks omitted). The agency considers “the ages, health, and
circumstances of qualifying lawful permanent resident and United States citizen
relatives,” including how a lower standard of living, diminished educational
opportunities, or adverse conditions in the country of removal might affect the
relatives. Id. at 63–64; see also In re Andazola-Rivas, 23 I. & N. Dec. 319, 322 (B.I.A.
2002) (describing the hardship requirement as a “very high standard”).
Our jurisdiction to review the agency’s denial of cancellation of removal
based on an applicant’s failure to satisfy the hardship requirement is limited to
constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(B)(i), (D);
Patel v. Garland, 142 S. Ct. 1614, 1627 (2022). For jurisdiction to attach, such claims
must be “colorable.” Barco-Sandoval v. Gonzales, 516 F.3d 35, 40–41 (2d Cir. 2008).
A colorable question of law may arise if the agency “totally overlook[s]” or
“seriously mischaracterize[s]” evidence, Mendez, 566 F.3d at 323, but not where the
applicant “merely quarrels over the correctness of the factual findings or
justification for the discretionary choices,” Xiao Ji Chen v. U.S. Dep’t of Just., 471
F.3d 315, 329 (2d Cir. 2006).
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We dismiss as to cancellation because Dong has not raised a colorable
question of law. He argues that the BIA erred by relying on Matter of J–J–G–, 27
I. & N. Dec. 808 (B.I.A. 2020), for the proposition that, to establish hardship based
on a qualifying relative’s health, the applicant must show that the relative has a
serious medical condition. However, the BIA cited Matter of J–J–G– for the
proposition that “the respondent must show that adequate medical care is not
reasonably available in the country of removal.” C.A.R. 5. And the IJ considered
this issue, finding that Dong’s wife received chemotherapy treatment in China,
and noting that there was no evidence that her treatment in the United States was
ongoing or that relocating to China would cause a “disruption” in treatment. Id.
at 57.
Dong also argues that the IJ failed to consider evidence of his wife’s
treatment. The IJ did not “overlook” or “mischaracterize” the evidence. See
Mendez, 566 F.3d at 323. The IJ acknowledged Dong’s wife’s diagnosis and the
fact that she had travelled to China for treatment; although the IJ found he lacked
the technical medical knowledge to interpret lab reports, Dong has conceded that
his wife was being monitored for recurrence and not receiving treatment at the
time of the hearing. To the extent Dong contends that the IJ gave this factor
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insufficient weight, we lack jurisdiction to consider such an argument. See Xiao Ji
Chen, 471 F.3d at 332.
Finally, there is nothing to support Dong’s argument that the IJ failed to
consider the hardship evidence cumulatively. See In re Gonzalez Recinas, 23 I. &
N. Dec. 467, 472 (B.I.A. 2002) (requiring an “assessment of hardship factors in their
totality”). The IJ considered Dong’s wife’s health, that his children did not have
“significant school issues or medical issues” and had spent years in China, and the
family’s financial resources. C.A.R. 57. Dong argues that the IJ did not consider
the impact Dong’s wife’s health had on the family, but the IJ specifically noted that
“the Court at no point is minimizing the tremendous impact this has had on
[Dong] and his family.” Id. at 56. Accordingly, the record does not compel the
conclusion that the IJ failed to consider the hardships cumulatively. See Xiao Ji
Chen, 471 F.3d at 336 n.17 (“[W]e presume that an IJ has taken into account all of
the evidence before him, unless the record compellingly suggests otherwise.”).
For the foregoing reasons, the petition for review is DENIED in part and
DISMISSED in remaining part. All pending motions and applications are
DENIED and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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