Filed: Jun. 22, 2015
Latest Update: Mar. 02, 2020
Summary: 13-4582 Zhu v. Lynch BIA Poczter, IJ A201 295 296 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 NOTAT
Summary: 13-4582 Zhu v. Lynch BIA Poczter, IJ A201 295 296 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 NOTATI..
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13-4582
Zhu v. Lynch
BIA
Poczter, IJ
A201 295 296
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
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 22nd day of June, two thousand fifteen.
5
6 PRESENT:
7
8 JOHN M. WALKER, JR.,
9 BARRINGTON D. PARKER,
10 CHRISTOPHER F. DRONEY,
11 Circuit Judges.
12 _____________________________________
13
14 GUIMING ZHU,
15
16 Petitioner,
17
18 v. 13-4582
19 NAC
20
21 LORETTA E. LYNCH, UNITED STATES
22 ATTORNEY GENERAL,1
23
24 Respondent.
25 _____________________________________
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted
for former Attorney General Eric H. Holder, Jr.
1 FOR PETITIONER: Vlad Kuzmin, New York, New York.
2
3 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
4 Attorney General; Terri J.
5 Scadron, Assistant Director; Corey
6 L. Farrell, Attorney, Office of
7 Immigration Litigation, United
8 States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review
14 is DENIED.
15 Petitioner Guiming Zhu, a native and citizen of People’s
16 Republic of China, seeks review of an October 23, 2013,
17 decision of the BIA affirming a May 30, 2012, decision of an
18 Immigration Judge (“IJ”) denying Zhu’s application for
19 asylum, withholding of removal, and relief under the
20 Convention Against Torture (“CAT”). In re Guiming Zhu, No.
21 A201 295 296 (B.I.A. Oct. 23, 2013), aff’g No. A201 295 296
22 (Immig. Ct. N.Y. City May 30, 2012). We assume the parties’
23 familiarity with the underlying facts and procedural history
24 in this case.
25 Under the circumstances of this case, we have reviewed
26 the IJ’s decision as modified by the BIA, i.e., minus the
2
1 basis for denying relief that the BIA did not consider (the
2 IJ’s denial of relief as to Zhu’s family planning claim).
3 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
4 522 (2d Cir. 2005). The applicable standards of review are
5 well established. See 8 U.S.C. § 1252(b)(4)(B); see also
6 Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
7 Substantial evidence supports the agency’s determination
8 that Zhu failed to establish a well-founded fear of
9 persecution on account of his practice of Falun Gong.
10 In order “to establish a well-founded fear of
11 persecution in the absence of any evidence of past
12 persecution, an alien must make some showing that
13 authorities in his country of nationality are either aware
14 of his activities or likely to become aware of his
15 activities.” Hongsheng Leng v. Mukasey,
528 F.3d 135, 143
16 (2d Cir. 2008). The only evidence Zhu submitted in support
17 of his contention that Chinese officials had discovered his
18 practice of Falun Gong in the United States were letters
19 from his parents and wife. The agency reasonably gave
20 little weight to these unsworn statements from interested
21 parties who were not available for cross-examination. See
3
1 Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013). Moreover,
2 the letters lacked detail regarding how Chinese officials
3 had discovered Zhu’s newly commenced practice in a foreign
4 country, see Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d
5 315, 341-42 (2d Cir. 2006), and Zhu’s sister, who spoke
6 regularly to their parents, could not corroborate that
7 officials had purportedly visited them to threaten Zhu, see
8 Chuilu Liu v. Holder,
575 F.3d 193, 196 (2d Cir. 2009)
9 (recognizing that, even if an applicant is deemed credible,
10 the IJ may require corroboration when it reasonably would be
11 expected).
12 The IJ also reasonably found that Zhu’s evidence failed
13 to show that Chinese authorities are likely to become aware
14 of his practice of Falun Gong. As the IJ noted, although
15 Zhu testified that he would continue his new Falun Gong
16 practice in China, he did not state whether he would
17 practice in public or whether he would practice by himself
18 at home (as he indicated is his normal practice in the
19 United States). Furthermore, the country conditions
20 evidence in the record reveals that, prior to the ban on
21 Falun Gong in 1999, there were tens of millions of
4
1 practitioners in China, and it does not discuss the Chinese
2 government’s current efforts to discover the identities of
3 Falun Gong practitioners. Therefore, because Zhu did not
4 state that he would practice Falun Gong in public in China
5 and he did not submit evidence that Chinese officials make
6 efforts to discover private practitioners, the IJ did not
7 err in finding that he failed to demonstrate that officials
8 are likely to become aware of his practice. See Jian Xing
9 Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that
10 a fear is not objectively reasonable if it lacks “solid
11 support” in the record and is merely “speculative at best”).
12 Accordingly, because Zhu failed to satisfy his burden
13 of demonstrating that Chinese officials are aware of or
14 likely to become aware of his practice of Falun Gong,
15 substantial evidence supports the agency’s determination
16 that Zhu failed to establish a well-founded fear of
17 persecution on account of his practice of Falun Gong. See
18 Hongsheng
Leng, 528 F.3d at 143. That finding was
19 dispositive of asylum, withholding of removal, and CAT
20 relief insofar as those claims were based on Zhu’s Falun
21 Gong claim. See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d
5
1 Cir. 2006). We do not consider the agency’s alternative
2 basis for denying relief—Zhu’s failure to demonstrate that
3 his fear of persecution (if discovered) was objectively
4 reasonable.
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
6
