17-553 Zhen v. Sessions BIA Hom, IJ A205 382 206 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 15th day of October, two thousand eighteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 ROSEMARY S. POOLER, 9 ROBERT D. SACK, 10 Circuit Judges. 11 _____________________________________ 12 13 WANG ZHEN, AKA WANG ZHENG, 14 Petitioner, 15 16 v. 17-553 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Lee Ratner, Law Office of Michael 24 Brown, New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; John S. Hogan, 28 Assistant Director; Robbin K. 29 Blaya, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 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

4 is DENIED.

5 Petitioner Wang Zhen, a native and citizen of the

6 People’s Republic of China, seeks review of a February 3,

7 2017, decision of the BIA affirming a March 11, 2016,

8 decision of an Immigration Judge (“IJ”) denying Zhen’s

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re Wang

11 Zhen, No. A205 382 206 (B.I.A. Feb. 3, 2017), aff’g No.

12 A205 382 206 (Immig. Ct. N.Y. City Mar. 11, 2016). We

13 assume the parties’ familiarity with the underlying facts

14 and procedural history in this case.

15 Under the circumstances of this case, we review the

16 IJ’s decision as modified by the BIA and review only the

17 ground for decision on which the BIA relied—Zhen’s failure

18 to meet his burden of proof. See Xue Hong Yang v. U.S.

19 Dep’t of Justice,

(2d Cir. 2005). The

20 applicable standards of review are well established. See

21

(b)(4)(B); Yanqin Weng v. Holder,

(2d Cir. 2009). For the reasons that follow, we

23 conclude that the agency did not err in determining that 2 1 Zhen failed to demonstrate past persecution or a well-

2 founded fear of future persecution.

3 I. Past Persecution

4 While the Immigration and Nationality Act does not

5 define persecution, see Baba v. Holder,

(2d

6 Cir. 2009), the BIA has defined it as a “threat to the life

7 or freedom of, or the infliction of suffering or harm upon,

8 those who differ in a way regarded as offensive.” Matter of

9 Acosta,

(B.I.A. 1985), overruled

10 in part on other grounds by INS v. Cardoza-Fonseca, 480

(1987); accord Ivanishvili v. U.S. Dep’t of

12 Justice,

(2d Cir. 2006). Past

13 persecution can be based on harm other than threats to life

14 or freedom, “includ[ing] non-life-threatening violence and

15 physical abuse,” Beskovic v. Gonzales,

, 226

16 n.3 (2d Cir. 2006), but the harm must be sufficiently

17 severe to rise above “mere harassment,” Ivanishvili, 433

18 F.3d at 341. The difference between harassment and

19 persecution is “necessarily one of degree that must be

20 decided on a case-by-case basis.” Id.

21 The agency did not err by determining that Zhen’s past

22 harm did not rise to the level of persecution. 8 U.S.C.

23 § 1252(b)(4) (A determination that an applicant has failed to 3 1 meet his burden is “conclusive unless manifestly contrary to

2 the law and an abuse of discretion.”). Zhen testified that

3 five police officers beat him with soft batons, punched him,

4 and kicked him until other church members interceded and he

5 managed to escape. Although he testified that he was bleeding

6 from his face, body, and legs, he did not further describe

7 his injuries or require any medical treatment. The agency

8 considered this testimony, and the fact that Zhen was neither

9 arrested nor detained, and reasonably determined that the

10 harm did not rise to the level of persecution. See Jian Qiu

11 Liu v. Holder,

(2d Cir. 2011) (affirming agency’s

12 determination that applicant’s past harm—being slapped in the

13 face; punched repeatedly by several family planning officers

14 in the face, chest, and back; and detained for two days—did

15 not rise to the level of persecution).

16 Zhen, relying on Beskovic, contends that the agency

17 ignored the context of his beating and that any harm rises to

18 the level of persecution when inflicted on an individual

19 engaged in a protected act. Zhen’s argument fails. Beskovic

20 holds that “[t]he BIA must . . . be keenly sensitive to the

21 fact that a ‘minor beating’ or, for that matter, any physical

22 degradation designed to cause pain, humiliation, or other

23 suffering, may rise to the level of persecution if it occurred 4 1 in the context of an arrest or detention on the basis of a

2 protected ground.”

(emphasis added). Because

3 the agency considered the context of the beating, which did

4 not “occur[] in the context of an arrest or detention,”

5 Zhen’s reliance on Beskovic is misplaced.

6 II. Future Persecution

7 Absent past persecution, an applicant may still

8 establish eligibility for asylum by demonstrating an

9 independent well-founded fear of future persecution, which

10 is a “subjective fear that is objectively reasonable.” Dong

11 Zhong Zheng v. Mukasey,

(2d Cir. 2009)

12 (internal quotation marks omitted); see also Y.C. v.

13 Holder,

(2d Cir. 2013) (“For an asylum

14 claim, the applicant must show a reasonable possibility of

15 future persecution.” (internal quotation marks omitted));

16 Jian Xing Huang v. U.S. INS,

(2d Cir.

17 2005) (“In the absence of solid support in the record,” a

18 fear of persecution is not well founded and “is speculative

19 at best.”). “An asylum applicant can show a well-founded

20 fear of future persecution in two ways: (1) by

21 demonstrating that he or she ‘would be singled out

22 individually for persecution’ if returned, or (2) by

23 proving the existence of a ‘pattern or practice in 5 1 [the] . . . country of nationality . . . of persecution of

2 a group of persons similarly situated to the applicant’ and

3 establishing his or her ‘own inclusion in, and

4 identification with, such group.’” Y.C.,

5 (quoting

(b)(2)(iii)).

6 Zhen does not challenge the agency’s finding that he

7 failed to demonstrate a pattern or practice of persecution.

8 Nor did the agency err by concluding that Zhen failed to

9 demonstrate a reasonable possibility that he would be singled

10 out for persecution.

(b)(4). Although Zhen

11 submitted letters from his father and a friend stating that

12 the police continued to search for him after he left China,

13 the agency reasonably declined to credit the letters because

14 they were authored by interested witnesses unavailable for

15 cross-examination. Y.C.,

(affirming agency’s

16 determination that letter from a relative in China—stating

17 that he had been visited by police who were aware of

18 applicant’s pro-democracy activities—was entitled to limited

19 weight because it was unsworn and submitted by an interested

20 witness). Zhen does not challenge the IJ’s treatment of these

21 letters or the IJ’s finding that the U.S. State Department’s

22 2013 International Religious Freedom Report did not document

23 a single incident of persecution of underground church 6 1 members in Zhen’s home region, which he had the burden to

2 show given the regional variation in China’s treatment of

3 underground church practitioners. See Jian Hui Shao v.

4 Mukasey,

(2d Cir. 2008) (observing that

5 where enforcement of a policy varies, it is the applicant’s

6 burden to show a well-founded fear of persecution in his

7 locality in China).

8 Because the agency reasonably found that Zhen failed to

9 demonstrate a well-founded fear of persecution, it did not

10 err in denying asylum or in concluding that he necessarily

11 failed to meet the higher burdens for withholding of removal

12 and CAT relief. Y.C.,

.

13 For the foregoing reasons, the petition for review is

14 DENIED.

15

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe 18 Clerk of Court

7