Filed: Jul. 13, 2017
Latest Update: Mar. 03, 2020
Summary: 15-2695 Yan v. Sessions BIA Poczter, IJ A088 043 670 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 NO
Summary: 15-2695 Yan v. Sessions BIA Poczter, IJ A088 043 670 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 NOT..
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15-2695
Yan v. Sessions
BIA
Poczter, IJ
A088 043 670
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.
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
13th day of July, two thousand seventeen.
PRESENT:
JON O. NEWMAN,
DENNIS JACOBS,
ROBERT D. SACK,
Circuit Judges.
_____________________________________
CHENGMIN YAN,
Petitioner,
v. 15-2695
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Ning Ye, Flushing, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal
Deputy Assistant Attorney
General; Keith I. McManus,
Assistant Director; Regan
Hildebrand, Senior Litigation
Counsel, 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 Chengmin Yan, a native and citizen of China,
seeks review of a July 24, 2015, decision of the BIA affirming
a March 11, 2014, decision of an Immigration Judge (“IJ”)
denying Yan’s application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Chengmin Yan, No. A088 043 670 (B.I.A. July 24, 2015), aff’g
No. A088 043 670 (Immig. Ct. N.Y. City Mar. 11, 2014). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed both
the BIA’s and IJ’s decisions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). The 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).
As an initial matter, we decline to consider Yan’s
arguments concerning his employment-related claim because he
did not press this claim before the BIA. See Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (providing
that judicially imposed issue exhaustion is mandatory). And,
2
for the reasons that follow, we conclude that the agency did
not err in determining that Yan failed to establish a
well-founded fear of persecution based on his pro-democracy
activities in the United States.
Absent past persecution, an alien may establish
eligibility for asylum by demonstrating a well-founded fear of
future persecution, which is a “subjective fear that is
objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552 F.3d
277, 284 (2d Cir. 2009) (internal quotation marks omitted); see
8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b)(2); see also Y.C.
v. Holder,
741 F.3d 324, 332 (2d Cir. 2013) (“For an asylum
claim, the applicant must show a reasonable possibility of
future persecution.” (internal quotation marks omitted)).
“An asylum applicant can show a well-founded fear of future
persecution in two ways: (1) by demonstrating that he or she
‘would be singled out individually for persecution’ if
returned, or (2) by proving the existence of a ‘pattern or
practice in [the] . . . country of nationality . . . of
persecution of a group of persons similarly situated to the
applicant’ and establishing his or her ‘own inclusion in, and
identification with, such group.’”
Y.C., 741 F.3d at 332
(quoting 8 C.F.R. § 1208.13(b)(2)(iii)).
First, the agency did not err in concluding that Yan failed
to demonstrate a reasonable possibility that he would be singled
3
out individually for persecution. “Importantly, ‘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 [or her] country of nationality are
either aware of his [or her] activities or likely to become aware
of his [or her] activities.’” Id. (quoting Hongsheng Leng v.
Mukasey,
528 F.3d 135, 143 (2d Cir. 2008)). Although Yan
submitted a letter from his wife stating that she had been
visited by police who were aware of Yan’s pro-democracy
activities, the IJ reasonably declined to admit this letter into
evidence because it was filed after the evidence submission
deadline. See 8 C.F.R. § 1003.31(c); Dedji v. Mukasey,
525
F.3d 187, 191 (2d Cir. 2008).
Absent his wife’s letter, the only evidence that Yan
provided to demonstrate the Chinese authorities’ likely
awareness of his U.S. political activities was his three online
articles criticizing the Chinese government, which were posted
with his photograph and name, and his testimony that he handed
out fliers in public and was photographed during protests in
front of the Chinese Consulate. However, the agency considered
this evidence and reasonably concluded that Yan’s fear of
persecution was speculative. See Jian Xing Huang v. INS, 421
F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid support
in the record” a fear of persecution is not objectively
4
reasonable and is “speculative at best.”); Y.C., 741 F.3d at
344 (citing Yue Wen Zhong v. Holder, 482 F. App’x 628, 630 (2d
Cir. 2012) (summary order) (“Although Zhong argues that the
Chinese government would have discovered the [four]
anti-Communist articles that he published on the internet, that
claim is speculative.”)); see also Xiao Ji Chen v. U.S. Dep’t
of Justice,
471 F.3d 315, 342 (2d Cir. 2006) (holding that the
weight accorded to an applicant’s evidence “lie[s] largely
within the discretion of the IJ” (internal quotation marks
omitted)). Indeed, Yan himself testified that the Chinese
government would not be able to identify him from just his
photograph and name.
Second, the agency did not err in concluding that Yan failed
to establish a pattern or practice of persecution of
similarly-situated individuals—namely, ordinary members of the
China Democracy Party (“CDP”) who join the CDP in the United
States and return to China. To establish a pattern or practice
of persecution against a particular group, an applicant must
demonstrate that the harm to that group is “systemic or
pervasive.” In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005);
see Mufied v. Mukasey, 508 F.3d 88, 92-93 (2d Cir. 2007). Here,
the agency correctly observed that while Yan and his witness
testified that two ordinary CDP members, who joined the CDP in
the United States, were persecuted after they returned to China,
5
this testimony was uncorroborated by any objective evidence and
one of these individuals, unlike Yan, had advocated for a
violent overthrow of the Chinese government. Further, the
country conditions evidence reasonably supports the agency’s
finding that high-profile CDP leaders and recruiters have been
persecuted for their pro-democracy activities in China, but not
ordinary members like Yan whose political activity occurred in
the United States. See Xiao Ji Chen, 471 F.3d at 342. The
agency therefore did not err in concluding that Yan failed to
show a pattern or practice of persecution of similarly-situated
individuals. See
Y.C., 741 F.3d at 334-35 (affirming agency’s
denial of pattern or practice claim by low-level CDP member)
(citing Yan Zhu Tang v. Holder, 429 F. App’x 59, 60 (2d Cir.
2011) (summary order) (“The evidence Tang
submitted . . . indicates that the prominent leaders of
pro-democracy movements outside of China and political
dissidents within China have been persecuted. However, as the
agency found, their persecution does not establish that Tang
is also at risk of persecution if she [is] returned to China
because she has been only a low-level activist outside of
China.”)).
Accordingly, because the agency reasonably found that Yan
failed to demonstrate a well-founded fear of persecution, it
did not err in denying asylum or in concluding that he
6
necessarily failed to meet the higher burden for withholding
of removal or CAT relief. Id. at 335.
Yan’s remaining due process claims are both unexhausted and
meritless. See Lin Zhong, 480 F.3d at 122.
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
7
