Zheng v. Sessions , 687 F. App'x 59 ( 2017 )

16-885
Zheng v. Sessions
BIA
Nelson, IJ
A206 074 191
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 17th day of April, two thousand seventeen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DENNIS JACOBS,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 MEI ZHENG,
14 Petitioner,
15
16 v. 16-885
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Dehai Zhang, Flushing, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal
26 Deputy Assistant Attorney
27 General; Douglas E. Ginsburg,
28 Assistant Director; Paul Fiorino,
29 Senior Litigation Counsel,
30 Office of Immigration Litigation,
31 United States Department of
32 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 is
4 DENIED.
5 Petitioner Mei Zheng, a native and citizen of China, seeks
6 review of a March 8, 2016, decision of the BIA affirming a
7 January 26, 2015, decision of an Immigration Judge (“IJ”)
8 denying Zheng’s application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”) and
10 finding that Zheng had knowingly filed a frivolous asylum
11 application. In re Mei Zheng, No. A206 074 191 (B.I.A. Mar.
12 8, 2016), aff’g No. A206 074 191 (Immig. Ct. N.Y. City Jan. 26,
13 2015). We assume the parties’ familiarity with the underlying
14 facts and procedural history in this case.
15 We have reviewed the decisions of both the IJ and the BIA.
16 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
17 applicable standards of review are well established. See
18 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
19 513 (2d Cir. 2009).
20 I. Frivolous Finding
21 “A person who makes an application for asylum determined
22 to be ‘frivolous,’ or deliberately and materially false, is
23 subject to a grave penalty: permanent ineligibility for most
2
1 forms of relief under the immigration laws.” Mei Juan Zheng
2 v. Mukasey, 514 F.3d 176, 178 (2d Cir. 2008); see 8 U.S.C.
3 § 1158(d)(6). “Given the serious consequences of a
4 frivolousness finding, the [governing] regulation provides a
5 number of procedural safeguards[:] . . . (1) notice to the alien
6 of the consequences of filing a frivolous application; (2) a
7 specific finding by the Immigration Judge or the Board that the
8 alien knowingly filed a frivolous application; (3) sufficient
9 evidence in the record to support the finding that a material
10 element of the asylum application was deliberately fabricated;
11 and (4) an indication that the alien has been afforded
12 sufficient opportunity to account for any discrepancies or
13 implausible aspects of the claim.” Matter of Y-L-, 24 I. & N.
14 Dec. 151, 155 (B.I.A. 2007) (discussing 8 C.F.R. § 1208.20).
15 Zheng’s assertions that the agency failed to comply with
16 the required procedures are meritless. First, the agency did
17 not err by finding that Zheng received notice of the
18 consequences of filing a frivolous application by virtue of the
19 written notice contained in her application. See Niang v.
20 Holder, 762 F.3d 251, 254 (2d Cir. 2014) (“Although we
21 understand that IJs frequently provide a warning of the
22 consequences of filing a frivolous application, nothing in the
23 INA expressly requires that the warning be given by an IJ. The
3
1 INA requires only that the applicant ‘receive []’ notice at the
2 time of filing.” (quoting 8 U.S.C. § 1158(d)(6)) (internal
3 citation omitted)). While Zheng claims that she did not
4 understand the written warnings in her application because she
5 “was not fluent” in English, the agency’s contrary finding is
6 supported by substantial evidence. See 8 U.S.C.
7 § 1252(b)(4)(B) (“[A]dministrative findings of fact are
8 conclusive unless any reasonable adjudicator would be compelled
9 to conclude to the contrary[.]”); see also Siewe v. Gonzales,
10 480 F.3d 160, 167 (2d Cir. 2007) (“Decisions as to . . . which
11 of competing inferences to draw are entirely within the province
12 of the trier of fact.” (internal quotation marks omitted)).
13 Second, the IJ did not fail to separately analyze Zheng’s
14 explanation for filing the frivolous application as she
15 contends. The IJ separately considered Zheng’s explanation
16 “that she was spurred on . . . by the first attorney that
17 represented her”; however, the IJ rejected that explanation
18 because Zheng “copied material . . . which she knew to be false
19 in her own handwriting, and signed it[;] . . . knowingly
20 submitted letters to the court . . . that she knew to be
21 falsified[; and] . . . acknowledged that she lied under oath
22 when she testified before an asylum officer about a significant
23 element of her claim.”
4
1 Finally, Zheng’s challenge to the frivolousness finding on
2 the grounds that she withdrew her application is misplaced.
3 The IJ was entitled to consider Zheng’s submission of false
4 statements, even though they were later withdrawn, when she
5 determined that a frivolous application had been made. Matter
6 of Y-L-, 24 I. & N. Dec. at 155; see also Niang, 762 F.3d at
7 253-54 (upholding a frivolousness finding based on an
8 applicant’s filing of a false asylum application that was
9 withdrawn prior to merits hearing).
10 II. Well-Founded Fear of Future Persecution
11 Absent past persecution, an alien may establish
12 eligibility for asylum by demonstrating a well-founded fear of
13 future persecution, which is a “subjective fear that is
14 objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552 F.3d
15 277, 284 (2d Cir. 2009) (internal quotation marks omitted); see
16 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b)(2); see also Y.C.
17 v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“For an asylum
18 claim, the applicant must show a reasonable possibility of
19 future persecution.” (internal quotation marks omitted)). “An
20 asylum applicant can show a well-founded fear of future
21 persecution in two ways: (1) by demonstrating that he or she
22 ‘would be singled out individually for persecution’ if
23 returned, or (2) by proving the existence of a ‘pattern or
5
1 practice in [the] . . . country of nationality . . . of
2 persecution of a group of persons similarly situated to the
3 applicant’ and establishing his or her ‘own inclusion in, and
4 identification with, such group.’” Y.C., 741 F.3d at 332
5 (quoting 8 C.F.R. § 1208.13(b)(2)(iii)).
6 First, the agency did not err in concluding that Zheng
7 failed to show a reasonable possibility that she would be
8 singled out individually for persecution. See Jian Xing Huang
9 v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of
10 solid support in the record,” a fear of persecution is not
11 objectively reasonable and is “speculative at best.”).
12 “Importantly, ‘to establish a well-founded fear of persecution
13 in the absence of any evidence of past persecution, an alien
14 must make some showing that authorities in his [or her] country
15 of nationality are either aware of his [or her] activities or
16 likely to become aware of his [or her] activities.’” Y.C., 741
17 F.3d at 332 (quoting Hongsheng Leng v. Mukasey, 528 F.3d 135,
18 143 (2d Cir. 2008)). After retracting her original claim,
19 Zheng did not assert that Chinese authorities are aware of her
20 religious practice, and she testified that no one in China other
21 than her family knows that she became a Christian in the United
22 States. Further, the IJ alternatively based her determination
23 on her finding that Zheng’s testimony that she mailed religious
6
1 materials to China was not credible – a finding that Zheng does
2 not challenge in her brief.
3 Second, the agency did not err in concluding that Zheng
4 failed to establish a pattern or practice of persecution of
5 Christians in China. To establish a pattern or practice of
6 persecution against a particular group, an applicant must
7 demonstrate that the harm to that group is “systemic or
8 pervasive.” In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005);
9 see Mufied v. Mukasey, 508 F.3d 88, 92-93 (2d Cir. 2007)
10 (accepting the BIA’s standard as reasonable, while noting that
11 “[w]ithout further elaboration [the standard does not make
12 clear] how systemic, pervasive, or organized persecution must
13 be before the Board would recognize it as a pattern or
14 practice”). Here, the agency reasonably found that religious
15 activities are not punished or restricted in a widespread
16 pattern. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
17 315, 342 (2d Cir. 2006) (holding that the weight accorded to
18 an applicant’s evidence “lie[s] largely within the discretion
19 of the IJ” (internal quotation marks omitted). Given this
20 nationwide variation, the agency reasonably concluded that
21 Zheng failed to establish a pattern or practice of persecution
22 of Christians in China. See Santoso v. Holder, 580 F.3d 110,
23 112 (2d Cir. 2009) (affirming agency’s finding of no pattern
7
1 or practice of persecution of Catholics in Indonesia where
2 evidence showed that religious violence was not nationwide and
3 that Catholics in many parts of the country were free to practice
4 their faith).
5 Accordingly, because the agency reasonably found that
6 Zheng failed to demonstrate a well-founded fear of persecution,
7 it did not err in denying asylum or in concluding that she
8 necessarily failed to meet the higher burden required for
9 withholding of removal or her burden for CAT relief. See Lecaj
10 v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED.
14 Any pending request for oral argument in this petition is DENIED
15 in accordance with Federal Rule of Appellate Procedure
16 34(a)(2), and Second Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
8