18-1729 Fu v. Barr BIA Sponzo, IJ A202 024 313

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 16th day of December, two thousand nineteen.

PRESENT: DENNIS JACOBS, SUSAN L. CARNEY, MICHAEL H. PARK, Circuit Judges. _____________________________________

TIANQI FU,

Petitioner,

v. No. 18-1729

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________

FOR PETITIONER: GARY J. YERMAN, Esq., New York, NY.

FOR RESPONDENT: BRENDAN P. HOGAN, Attorney (Joseph H. Hunt, Assistant Attorney General; Song Park, Senior Litigation Counsel, on the brief) for Office of Immigration Litigation, United States Department of Justice, Civil Division, Washington, DC. 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 Tianqi Fu, a native and citizen of the People’s

Republic of China, seeks review of a decision of the BIA affirming

a decision of an Immigration Judge (“IJ”) denying his application

for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). In re Tianqi Fu, No. A202 024

313 (B.I.A. May 18, 2018), aff’g No. A202 024 313 (Immig. Ct. N.Y.

City Jun. 27, 2017). We assume the parties’ familiarity with the

underlying facts and procedural history in this case, to which we

refer only as required to explain our decision to deny the

petition.

We have considered both the IJ’s and the BIA’s decisions “for

the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir. 2006). The applicable standards of

review are well established. See

(b)(4)(B); see

also Yanqin Weng v. Holder,

(2d Cir. 2009). We

conclude that substantial evidence supports the agency’s

determination that Fu failed to establish a well-founded fear of

future persecution.

Fu makes no claim of past persecution. Absent past

persecution, an applicant may establish eligibility for asylum by

demonstrating “that he has a well-founded fear of future 2 persecution, which requires that the alien present credible

testimony that he subjectively fears persecution and establish

that his fear is objectively reasonable.” Ramsameachire v.

Ashcroft,

(2d Cir. 2004); see also

(b)(2). To demonstrate such a well-founded fear, an

applicant must show either a reasonable possibility that he “would

be singled out individually for persecution” or that the country

of removal has a “pattern or practice” of persecuting individuals

“similarly situated” to him.

(b)(2)(iii). Where,

as here, an applicant expresses a fear based on activities

undertaken solely in the United States, he “must make some showing

that authorities in his country of nationality are either aware of

his activities or likely to become aware of his activities.”

Hongsheng Leng v. Mukasey,

(2d Cir. 2008). In

the asylum context, this requires an applicant to show a

“reasonable possibility” that the government will become aware of

the activity.

Absent “solid support” in the record, a

petitioner’s fear of future persecution is properly deemed

“speculative at best.” Jian Xing Huang v. U.S. I.N.S.,

(2d Cir. 2005).

The agency did not err in finding that Fu failed to establish

a well-founded fear of future persecution. Fu did not demonstrate

that Chinese officials are aware, or are likely to become aware,

of his religious practice should he be removed to China. Fu did 3 not assert that Chinese officials are aware of his religious

activities in the United States. Rather, he alleged that Chinese

officials knew of his father’s membership in a family church and,

in 2009, had detained and tortured Fu’s father for that reason.

Further, Fu failed to demonstrate that Chinese officials are

likely to discover Fu’s own religious practice. First, his limited

church attendance in the United States made his assertions

regarding any possible future church attendance in China

speculative. Fu admitted at his 2017 hearing that, since becoming

interested in Christianity after arriving in the United States in

2013, he has attended church infrequently. He acknowledged that he

therefore was as yet ineligible for baptism. In addition to

conceding that his church attendance has been infrequent, Fu

further acknowledged that, since he left China in 2013, the police

had not visited or threatened his mother on account of his father’s

past practice, decreasing the likelihood that the police would

discover Fu’s own religious practice through any threatening

visits. In addition, although Fu testified that he planned to

continue attending his current U.S. church, that he did not want

to abandon his faith if removed to China, and that in China, true

believers attend underground churches (as opposed to state-

sanctioned churches), he never stated directly that he would

regularly attend an underground church in China if removed.

4 Accordingly, we think it speculative to conclude that, if

removed, Fu would attend an underground church in China and be

persecuted as a result. Moreover, his testimony that authorities

had not approached his mother in recent years and the record

evidence showing that tens of millions of people in China are

practicing Christians undermined his claim that authorities would

learn of his individual activities and persecute him, in

particular. See Hongsheng Leng,

; see also Jian

Xing Huang,

.

Fu also contends that China has a pattern or practice of

persecuting individuals who are similarly situated to him, and

that this is enough to establish an objective basis for fearing

future persecution. Although Fu did not specifically present this

argument to the agency, we treat it as exhausted because the BIA

addressed (and rejected) it, concluding that it could discern no

pattern or practice of persecution of infrequent religious

practitioners such as Fu. See Ruiz-Martinez v. Mukasey,

, 112 n.7 (2d Cir. 2008). The agency reasonably found in

addition that the documentary record evidence adduced in this case

does not support a finding that, in China, there is a “systemic or

pervasive” persecution of similarly situated Christians sufficient

to demonstrate a cognizable pattern and practice of persecution.

In re A-M-,

(BIA 2005) (describing a

pattern or practice of persecution as the “systemic or pervasive” 5 persecution of a group); see also

(b)(2)(iii)

(setting forth requirements for establishing asylum eligibility);

Santoso v. Holder,

, 112 & n.1 (2d Cir. 2009)

(rejecting pattern or practice claim on basis of background

materials describing religious persecution as localized rather

than countrywide in Indonesia, “a nation state consisting of

approximately 6000 inhabited islands”). The articles that Fu

submitted to the agency reflect that China’s population includes

approximately 70 million Christians attending official and

unofficial churches. Much of the background record evidence

suggests that Chinese authorities target primarily the leadership

of particular churches and not general members of Christian

congregations.

Additionally, the record shows that the Chinese government’s

treatment of members of underground churches varies by region.

Although in 2009, the police in Fu’s home province of Jilin

targeted Fu’s father, the record contains no documentary evidence

regarding the police’s treatment of underground church members

there, either before or after 2009. In view of the absence of

record evidence suggesting pervasive persecution of even regular

practitioners in his home region, Fu did not establish a relevant

pattern or practice of persecution of individuals who attend church

only sporadically. See Jian Hui Shao v. Mukasey,

,

165–66, 174 (2d Cir. 2008) (finding no error in BIA’s requiring 6 localized evidence of persecution in China when record reflected

wide variances in population control policies and practices around

the country).

We decline Fu’s request to consider the 2017 U.S. State

Department Religious Freedom Report, because it was not in the

record before the agency. See

(b)(4)(A) (“[T]he

court of appeals shall decide the petition only on the

administrative record on which the order of removal is based.”).

Even were we to consider it, however, it would not cause us to

alter our conclusion because it contains no reference to the

treatment of underground Christian church members in Jilin

Province. See Mukasey,

.

In sum, given the lack of evidence of Fu’s regular practice

of Christianity in the United States, and of proof that any such

practice by him would occur, be discovered, and result in

persecution upon his return to China, we identify no error in the

agency’s conclusion that Fu failed to demonstrate the objectively

reasonable fear of future harm required to sustain an asylum claim.

Fu’s failure to carry this burden for his asylum claim necessarily

means that he is unable to show the higher likelihood of harm that

is required to sustain a claim for withholding and CAT. See Lecaj

v. Holder,

(2d Cir. 2010).

7 For the foregoing reasons, the petition for review is DENIED

and the previously granted stay is VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

8