19-611 Zhang v. Barr BIA Nelson, IJ A 205 440 564 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 18th day of December, two thousand twenty.

PRESENT: JON O. NEWMAN, ROBERT A. KATZMANN, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________

SHULIN ZHANG, Petitioner,

v. 19-611 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Mike P. Gao, Law Offices of Mike P. Gao, P.C., Flushing, NY.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Carl McIntyre, Assistant Director; Nancy Ellen Friedman, Senior Litigation Counsel, 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 GRANTED and the case is REMANDED.

Petitioner Shulin Zhang, a native and citizen of the People’s Republic of China, seeks

review of a February 22, 2019 decision of the BIA affirming a December 14, 2017 decision of an

Immigration Judge (“IJ”) denying Zhang’s application for asylum, withholding of removal, and

relief under the Convention Against Torture. In re Shulin Zhang, No. A 205 440 564 (B.I.A. Feb.

22, 2019), aff’g No. A 205 440 564 (Immig. Ct. N.Y. City Dec. 14, 2017). We assume the parties’

familiarity with the underlying facts and procedural history in this case.

The applicable standards of review are well established. See

(b)(4); see

also Chuilu Liu v. Holder,

(2d Cir. 2009) (reviewing factual findings underlying

burden of proof determinations under the substantial evidence standard); Yanqin Weng v. Holder,

(2d Cir. 2009) (reviewing application of law to undisputed fact de novo).

Zhang did not claim past persecution, but he asserted a fear of future persecution on account

of his activities with the China Democratic Party (“CDP”) in the United States. An applicant may

establish eligibility for asylum by demonstrating “that he has a well-founded fear of future

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). 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 individuals “similarly situated” to him.

§ 1208.13(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

2 of nationality are either aware of his activities or likely to become aware of his activities.”

Hongsheng Leng v. Mukasey,

(2d Cir. 2008). 1

“The testimony of the applicant may be sufficient to sustain the applicant’s burden without

corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is

credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a

refugee.”

(b)(1)(B)(ii); see also Chuilu Liu, 575 F.3d at 196–97. “In determining

whether the applicant has met [his] burden, the trier of fact may weigh the credible testimony along

with other evidence of record.”

(b)(1)(B)(ii). Moreover, the trier of fact may

require corroboration of “otherwise credible testimony,” and “such evidence must be provided

unless the applicant does not have the evidence and cannot reasonably obtain the evidence.”

“No court shall reverse a determination made by a trier of fact with respect to the availability of

corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact is compelled to

conclude that such corroborating evidence is unavailable.”

(b)(4).

We do not disturb the agency’s finding that Zhang provided insufficient evidence that the

Chinese government was or is aware of his political activities in the United States. The agency did

not err in declining to credit an unsworn letter from Zhang’s wife in China recounting how Chinese

officials threatened and harassed his family in 2012 due to his political activities. See Y.C. v.

Holder,

(2d Cir. 2013) (upholding BIA’s decision not to credit letter from

applicant’s spouse to corroborate government awareness of activities in United States); see also

Hongsheng Leng,

. The agency also did not err in declining to credit an

unauthenticated police summons. Zhang alleged that the police required his daughter to report to

them to discuss his political activities, but the summons did not mention Zhang’s name or

1 In quoting cases, we omit internal citations, quotation marks, footnotes, and alterations. 3 activities, and he produced no statement from his daughter to provide foundation for the document.

See Shunfu Li v. Mukasey,

(2d Cir. 2008).

The events of 2012, however, are relevant primarily to whether Chinese officials “were

aware” or “are aware” of Zhang’s association with the CDP. Y.C., 741 F.3d at 333–34. After

discounting this evidence, the IJ did not address Zhang’s additional evidence that Chinese officials

were “likely to become aware” of his CDP affiliation in the future,

and that he would therefore

be threatened with persecution if removed to China. Specifically, Zhang had submitted (1) photos

showing him attending pro-democracy CDP protests, (2) pro-democracy CDP articles he published

online under his real name, (3) a 2015 State Department report stating that the Chinese government

monitors and targets CDP members, and (4) a list of individuals currently incarcerated in China

for political reasons. The IJ’s ruling did not meaningfully discuss this evidence. Rather, the IJ

concluded that “[e]ven when there is some evidence that the Chinese government monitors the

Internet, such evidence was found insufficient to meet the respondent’s burden of proof.” Joint

App’x 11.

We respectfully conclude that was legal error. We therefore remand so that the agency can

more fully consider whether “the Chinese government is likely to become aware of [the

petitioner’s] membership in the CDP after his return to China.” Shi Jie Ge v. Holder,

(2d Cir. 2009); see also

at 95–96 (rejecting a BIA ruling that required a CDP member to

prove that “China tracks expatriate political activists,” because “a petitioner may also demonstrate

a well-founded fear of future persecution by demonstrating that his involvement in a banned

organization may become known after his return.”); Hongsheng Leng, 528 F.3d at 142–43

(remanding to agency because it did not consider whether the Chinese government could find out

about the petitioner’s CDP activities if removed and because the agency did not consider items in

4 the record, including a State Department report).

For the foregoing reasons, the petition for review is GRANTED and the case is

REMANDED for further proceedings consistent with this order. All pending motions and

applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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