Filed: Feb. 18, 2016
Latest Update: Mar. 02, 2020
Summary: 12-696 Xiong v. Lynch BIA Hom, IJ A070 896 268 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: 12-696 Xiong v. Lynch BIA Hom, IJ A070 896 268 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 ..
More
12-696
Xiong v. Lynch
BIA
Hom, IJ
A070 896 268
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 18th day of February, two thousand sixteen.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_____________________________________
JIANG XIONG,
Petitioner,
v. 12-696
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Yee Ling Poon, Robert Duk-Hwan Kim,
Law Office of Yee Ling Poon, LLC,
New York, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Blair T. O’Connor,
Assistant Director; Juria L. Jones,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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.
Petitioner Jiang Xiong, a native and citizen of China,
seeks review of a January 24, 2012, decision of the BIA
affirming in part a July 22, 2009, decision of Immigration
Judge (“IJ”) Sandy K. Hom, denying Petitioner’s application
for asylum, withholding of removal and relief under the
Convention Against Torture (“CAT”). In re Jiang Xiong, No.
A070 896 268 (B.I.A. Jan. 24, 2012), aff’g in part No. A070
896 268 (Immig. Ct. N.Y. City July 22, 2009). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we review only
the BIA’s decision with respect to its finding that Jiang
was subject to the persecutor bar, and the IJ’s decision
with respect to the alternative finding that Jiang failed to
meet his burden of proof. See Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
2
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009).
Because substantial evidence supports the agency’s
finding that Jiang did not establish a well-founded fear of
persecution, we need not reach the BIA’s finding that
Jiang’s conduct as a driver for family planning officials in
China rendered him a “persecutor” under the Immigration and
Nationality Act (“INA”). See Xu Sheng Gao v. U.S. Att’y
Gen., 500 F.3d 93, 98 (2d Cir. 2007); 8 U.S.C.
§§ 1158(b)(2)(A)(i) and 1231(b)(3)(B)(i).
Jiang does not contend that he was persecuted in China
on account of his practice of Christianity and, accordingly,
he was required to make an independent showing that he would
be subject to harm if he returned to China, by demonstrating
either that he would be singled out for persecution or that
there existed a pattern or practice of persecution. See
8 C.F.R. § 1208.13(b). Substantial evidence supports the
agency’s conclusion that, as a lay member of a family church
in his home province, Fujian, Jiang had not established a
well-founded fear of persecution.
While Jiang points to evidence that the Chinese
government continues to target underground churches and
3
their members, the agency reasonably found that, although
suppression of religious groups in China occurs, Jiang had
not demonstrated an objectively reasonable fear of
persecution in his home province, Fujian. See Siewe v.
Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“[W]here there
are two permissible views of the evidence, the fact finder’s
choice between them cannot be clearly erroneous.”).
Jiang’s argument that authorities in China would
consider him to be a church leader due to his “zealous
religious activities,” including teaching and proselyting,
is unpersuasive. Although Jiang’s pastor testified that
Jiang “taught Sunday school sometime[s],” Jiang testified
that he had never been a “leader, a minister, a priest, a
deacon, [or a] teacher at the church.” Moreover, while
Jiang argues that he faces persecution due to China’s ban on
public proselytizing, the only evidence in the record of him
engaging in proselytism is his pastor’s testimony that he
brought colleagues and friends to the church. Given this
limited testimony, and Department of State’s International
Religious Freedom Report for 2008's indication that
proselyting is permitted in “private settings,” Jiang’s fear
of persecution on the basis of these activities is not
4
objectively reasonable. See Jian Xing Huang v. INS, 421
F.3d 125, 129 (2d Cir. 2005) (finding that, absent “solid
support” in the record, a petitioner’s “fear speculative at
best”).
Accordingly, as substantial evidence supports the
agency’s finding that Jiang failed to establish a
well-founded fear of persecution based on his practice of
Christianity, the agency did not err in denying his
application for asylum. Because he failed to meet the
burden of asylum,Jiang necessarily failed to meet the higher
burdens for withholding of removal and CAT relief, as those
claims were based on the same factual predicate. See Paul
v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5
