18-3681 Zheng v. Wilkinson BIA Hom, IJ A095 518 259 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 1st day of March, two thousand twenty-one.

PRESENT: PIERRE N. LEVAL, ROSEMARY S. POOLER, STEVEN J. MENASHI, Circuit Judges. _____________________________________

JINWEN ZHENG, Petitioner,

v. 18-3681 NAC ROBERT M. WILKINSON, ACTING UNITED STATES ATTORNEY GENERAL, 1 Respondent. _____________________________________

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Robert M. Wilkinson is automatically substituted as Respondent. FOR PETITIONER: Zhen Liang Li, Esq., New York, NY.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Carl McIntyre, Assistant Director; Sharon M. Clay, 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 DISMISSED in part and DENIED in remaining part.

Petitioner Jinwen Zheng, a native and citizen of the

People’s Republic of China, seeks review of a November 14,

2018, decision of the BIA affirming a September 29, 2017,

decision of an Immigration Judge (“IJ”) denying cancellation

of removal, asylum, withholding of removal, and protection

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

Zheng, No. A 095 518 259 (B.I.A. Nov. 14, 2018), aff’g No. A

095 518 259 (Immig. Ct. N.Y. City Sept. 29, 2017). We assume

the parties’ familiarity with the underlying facts and

procedural history.

We have reviewed the IJ’s decision as modified and

supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of

Justice,

(2d Cir. 2005); Yan Chen v.

2 Gonzales,

(2d Cir. 2005). Only the denial

of cancellation and the denial of asylum and related relief

on corroboration grounds are before us.

I. Cancellation of Removal

Our jurisdiction to review the agency’s denial of

cancellation of removal, including the hardship

determination, is limited to colorable constitutional claims

and questions of law. See

(a)(2)(B)(i), (D);

Barco-Sandoval v. Gonzales,

, 39–40 (2d Cir. 2008).

A nonpermanent resident, such as Zheng, may have her

removal canceled if she establishes, among other

requirements, that her “removal would result in exceptional

and extremely unusual hardship” to her U.S. citizen or lawful

permanent resident spouse, parent, or child. 8 U.S.C.

§ 1229b(b)(1). The agency concluded that Zheng failed to

show that her removal would cause the requisite hardship to

her U.S. citizen son. Such hardship “must be ‘substantially’

beyond the ordinary hardship that would be expected when a

close family member leaves this country.” In re Monreal-

Aguinaga,

(BIA 2001) (quoting H.R.

Conf. Rep. No. 104-828, at 213 (1996)).

We dismiss Zheng’s petition as to her challenge of

3 cancellation of removal. Although the agency may commit an

error of law if it “totally overlook[s]”or “seriously

mischaracterize[s]” material facts, Mendez v. Holder,

(2d Cir. 2009), Zheng has not identified a

colorable claim. The record reflects that the IJ and BIA

considered her evidence. Zheng argues that the agency failed

to consider “her husband’s lack of immigration status, the

tender age of the children, and their health problems, as

well as the conditions in China informing her fear of

persecution . . . [and] the hardship effect to the qualifying

US citizen child in term[s] of school and medical qualities

in China and parents’ financial abilities.” But the IJ’s and

BIA’s decisions reflect that the agency considered these

factors. To the extent that Zheng argues that the agency put

too little weight on certain evidence, the weight the agency

gives to the evidence and its balancing of factors is beyond

our jurisdiction. See Argueta v. Holder,

(2d Cir. 2010). Accordingly, we dismiss the petition as to

cancellation because Zheng has not raised a colorable

question of law. See Xiao Ji Chen, 471 F.3d at 329.

4 II. Asylum, Withholding of Removal, and CAT: Corroboration

The applicable standards of review are well established.

See

(b)(4)(B); 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).

Zheng makes no claim of past persecution. Absent past

persecution, an applicant may establish eligibility for

asylum by demonstrating “that [s]he has a well-founded fear

of future persecution, which requires that the alien present

credible testimony that [s]he subjectively fears persecution

and establish that h[er] fear is objectively reasonable.”

Ramsameachire v. Ashcroft,

(2d Cir. 2004);

see also

(b)(2). To demonstrate a well-

founded fear, an applicant must show either a reasonable

possibility that she “would be singled out individually for

persecution” or that the country of removal has a “pattern or

practice” of persecuting individuals “similarly situated” to

her.

(b)(2)(iii). Where, as here, an

applicant expresses a fear based on activities undertaken

5 solely in the United States, she “must make some showing that

authorities in h[er] country of nationality are either aware

of h[er] activities or likely to become aware of h[er]

activities.” Hongsheng Leng v. Mukasey,

(2d Cir. 2008).

The agency reasonably found that Zheng failed to satisfy

her burden of proof because she provided insufficient

evidence that the Chinese police were or would likely become

aware of her religious practice in the United States and

persecute her as a result. Zheng failed to submit evidence

that Chinese authorities were aware of her religious

activities or that she had sent her mother religious materials

in 2012. The IJ was permitted to require additional

corroboration because such evidence was reasonably available.

See

(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at

198–99. At the time of Zheng’s hearing in 2016, her mother

was living in the United States as a lawful permanent

resident, but her mother did not testify or provide a written

statement to confirm Zheng’s allegation that Chinese

authorities had raided a religious gathering and learned that

Zheng had sent religious materials to China. The IJ did not

err in rejecting Zheng’s explanation that she did not think

6 such evidence was necessary. See

(b)(4).

Moreover, even though Zheng testified that she would continue

practicing her faith in China, she failed to present objective

evidence that the Chinese authorities would likely become

aware of those activities and persecute her as a result,

particularly as she did not corroborate her mother’s alleged

persecution. See Jian Xing Huang v. U.S. INS,

(2d Cir. 2005) (“In the absence of solid support in the

record . . . [an applicant’s] fear is speculative at best.”).

Zheng does not argue that there is a pattern or practice of

persecution of Catholics. See Yueqing Zhang v. Gonzales,

, 541 n.1, 545 n.7 (2d Cir. 2005) (concluding that

asylum applicant waives issues not raised in brief).

In sum, the agency did not err in finding that Zheng

failed to satisfy her burden of establishing a well-founded

fear of future persecution because she did not submit

available corroboration. See

(b)(1)(B)(ii);

Chuilu Liu, 575 F.3d at 196–98. This finding is dispositive

because a failure to meet the burden for asylum necessarily

means that Zheng was unable to meet the higher burden for

withholding of removal and CAT protection. See Lecaj v.

Holder,

(2d Cir. 2010).

7 For the foregoing reasons, Zheng’s petition for review

is DISMISSED in part and DENIED in remaining part.

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

8