Filed: Apr. 02, 2013
Latest Update: Mar. 28, 2017
Summary: 11-4835 Weng-Weng v. Holder BIA Bukszpan, IJ A099 538 456 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 T
Summary: 11-4835 Weng-Weng v. Holder BIA Bukszpan, IJ A099 538 456 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 TH..
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11-4835
Weng-Weng v. Holder
BIA
Bukszpan, IJ
A099 538 456
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 2nd day of April, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 ______________________________________
13
14 JUN JI WENG-WENG, AKA JUN JI WENG,
15 Petitioner,
16 11-4835
17 v. NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Michael Brown, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Derek C. Julius,
28 Senior Litigation Counsel; Rebekah
29 Nahas, Trial Attorney, Office of
1 Immigration Litigation, Civil
2 Division, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner, Jun Ji Weng-Weng, a native and citizen of
10 the People’s Republic of China, seeks review of an October
11 28, 2011, decision of the BIA affirming the September 22,
12 2010, decision of Immigration Judge (“IJ”) Joanna Miller
13 Bukszpan, which denied her application for asylum,
14 withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Jun Ji Weng-Weng, No. A099
16 538 456 (B.I.A. Oct. 28, 2011), aff’g No. A099 538 456
17 (Immig. Ct. N.Y. City Sept. 22, 2010). We assume the
18 parties’ familiarity with the underlying facts and
19 procedural history of the case.
20 Under the circumstances of this case, we have reviewed
21 the decision of the IJ as supplemented by the BIA. See Yan
22 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
23 applicable standards of review are well-established. See
24 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d
2
1 510, 513 (2d Cir. 2009). Because Weng-Weng does not
2 challenge the agency’s denial of CAT relief, we have
3 reviewed only the denial of asylum and withholding of
4 removal.
5 Weng-Weng argues that the IJ erred by finding that she
6 failed to demonstrate that she suffered past persecution and
7 a well-founded fear of future persecution based on her
8 practice of Falun Gong. To demonstrate a well-founded fear
9 of future persecution, an asylum applicant must show either:
10 (1) that she suffered past persecution; or (2) a fear of
11 future persecution because she “would be singled out
12 individually for persecution” or because there was “a
13 pattern or practice in [] her country of nationality of
14 persecution of a group of persons similarly situated to
15 [her].” 8 C.F.R. §§ 1208.13(b)(2), 1208.16(b)(2). To show
16 an objectively reasonable fear of future persecution, an
17 applicant must also demonstrate “that authorities in his
18 country of nationality are either aware of his activities or
19 likely to become aware of his activities.” Hongsheng Leng
20 v. Mukasey,
528 F.3d 135, 143 (2d Cir. 2008). Here, the IJ
21 reasonably found that Weng-Weng failed to establish an
22 objectively reasonable basis for fearing persecution in
23 China.
3
1 Although Weng-Weng was kicked and punched while being
2 detained, because the IJ considered the context of the harm,
3 noting the lack of injury, the brief periods of detentions,
4 and time that passed between the incidents, we find no error
5 in the IJ’s determination that the beatings Weng-Weng
6 suffered in custody did not rise to the level of
7 persecution. See Jian Qiu Liu v. Holder, 632 F.3d 820, 822
8 (2d Cir. 2011) (noting that though a beating that occurs
9 within the context of an arrest or detention may constitute
10 persecution, the agency may reasonably find no past
11 persecution so long as it considers the context in which the
12 harm is inflicted).
13 The IJ also reasonably found that Weng-Weng’s testimony
14 and documentary evidence was insufficient to demonstrate
15 that she would be persecuted in China on account of her
16 practice of Falun Gong. Although Weng-Weng’s evidence
17 indicated that Chinese authorities have arrested and
18 detained Falun Gong practitioners, the IJ reasonably found
19 that her credible testimony did not alone sufficiently
20 establish that Chinese authorities were likely to become
21 aware of her practice of Falun Gong given her testimony
22 that: (1) she fled China for reasons other than fleeing
4
1 persecution; (2) she practiced Falun Gong alone in her home;
2 and (3) her knowledge of Falun Gong was limited to two
3 “rote” phrases describing its principles. See 8 U.S.C.
4 § 1158(b)(1)(B)(ii) (providing that it is the applicant’s
5 burden to demonstrate her eligibility for asylum through
6 credible testimony and reasonably available corroborating
7 evidence); Hongsheng Leng, 528 F.3d at 143.
8 Nor did the IJ err in finding that Weng-Weng failed to
9 provide reasonably available corroborating evidence from her
10 friend who witnessed her practice Falun Gong. See 8 U.S.C.
11 § 1158(b)(1)(B)(ii). Although Weng-Weng testified that she
12 had lost contact with that friend, she did not explain how
13 she obtained an affidavit from him one month prior to her
14 merits hearing. Furthermore, the IJ reasonably gave minimal
15 weight to photographs of Weng-Weng practicing Falun Gong,
16 because she had them created for her hearing by a person
17 whom she did not know and who could not testify on her
18 behalf. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
19 315, 342 (2d Cir. 2006) (the weight to afford evidence lies
20 largely within the discretion of the IJ).
21 Accordingly, the IJ did not err in finding that Weng-
22 Weng had failed to establish her eligibility for asylum.
5
1 See 8 U.S.C. § 1101(a)(42); Hongsheng Leng, 528 F.3d at 143;
2 Jian Xing Huang, 421 F.3d at 129. Because Weng-Weng was
3 unable to show the objective likelihood of persecution
4 needed to make out an asylum claim, she was necessarily
5 unable to meet the higher standard required to succeed on a
6 claim for withholding of removal. See Paul v. Gonzales, 444
7 F.3d 148, 156 (2d Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
6
