17-3960 Gao v. Barr BIA Poczter, IJ A097 814 028 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 27th day of January, two thousand twenty.

PRESENT: ROBERT A. KATZMANN, Chief Judge, JON O. NEWMAN, SUSAN L. CARNEY, Circuit Judges. _____________________________________

TONG GAO, Petitioner,

v. 17-3960 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Gary J. Yerman, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Anthony P. Nicastro, Assistant Director; Vanessa M. Otero, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, 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 Tong Gao, a native and citizen of the People’s

Republic of China, seeks review of a November 13, 2017,

decision of the BIA affirming a February 2, 2017, decision of

an Immigration Judge (“IJ”) denying Gao’s application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Tong Gao, No. A

097 814 028 (B.I.A. Nov. 13, 2017), aff’g No. A 097 814 028

(Immig. Ct. N.Y. City Feb. 2, 2017). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

We have reviewed both the IJ’s and the BIA’s opinions

“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); Yanqin Weng v. Holder,

(2d Cir. 2009). The agency did not err in concluding

2 that Gao failed to satisfy his burden of proving a well-

founded fear of future persecution in China on account of his

practice of Christianity in the United States.

Absent past persecution, an alien may establish

eligibility for asylum by demonstrating a well-founded fear

of future persecution. See

(b)(2);

Hongsheng Leng v. Mukasey,

(2d Cir. 2008).

To do so, an applicant must show either a reasonable

possibility that he would be singled out for persecution or

that the country of removal has a pattern or practice of

persecuting similarly situated individuals. See

(b)(2)(iii); Hongsheng Leng,

. When

an alien seeks to establish eligibility for relief based

solely on activities commenced 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,

.

The agency did not err in determining that Gao did not

establish that he would be singled out for persecution upon

return to China. Gao argued that he would be singled out for

proselytizing because of two incidents, that the police 3 searched for one of his friends for attending a family church

in 2007 and later arrested his sister-in-law during a house

church gathering in in 2014. However, his argument is

speculative. Neither Gao’s friend nor his sister-in-law

described harm sufficiently severe to constitute persecution.

See Ivanishvili v. U.S. Dep’t of Justice,

(2d Cir. 2006) (harm must rise above “mere harassment”).

Neither described being apprehended for proselytizing, as Gao

intends to do. Nor did Gao state whether he planned to attend

his sister-in-law’s house church. Moreover, the incident

involving Gao’s friend occurred approximately ten years prior

to Gao’s merits hearing. These two incidents years apart do

not establish that Gao’s fear of persecution is well founded.

The agency also did not err in finding that Gao failed

to establish a pattern or practice of persecution of similarly

situated Christians. The country conditions evidence

reflects that there are tens of millions of Christians in

China, more than 40 million of whom practice outside of state

sanctioned churches and that the authorities’ treatment of

unregistered groups varies across the country. And the

evidence describes few incidents of persecution in Gao’s home

province of Fujian, the most recent of which was in 2010. 4 This evidence describing varying levels of mistreatment with

little documentation specific to Gao’s home province is not

sufficient to establish a pattern or practice of persecution.

See In re A-M-,

(B.I.A. 2005)

(declining to find a pattern or practice of persecution when

the threat of harm was not “so systemic or pervasive as to

amount to a pattern or practice of persecution”).

Accordingly, because the agency reasonably found that

Gao failed to demonstrate a well-founded fear of persecution,

it did not err in also denying withholding of removal and CAT

relief, as those forms of relief require a greater likelihood

of harm. See Lecaj v. Holder,

(2d Cir.

2010).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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