19-4294 Zhang v. Garland BIA Hom, IJ A205 883 284/285

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 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 16th day of August, two thousand twenty-two. 5 6 PRESENT: 7 JON O. NEWMAN, 8 JOSEPH F. BIANCO, 9 MYRNA PÉREZ, 10 Circuit Judges. 11 _____________________________________ 12 13 YAN ZHANG, HUI ZHAO, 14 Petitioners, 15 16 v. 19-4294 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONERS: Richard Tarzia, Esq., Belle Mead, 24 NJ. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; Mary 28 Jane Candaux, Assistant Director; 29 Stephen Finn, Trial Attorney, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC.

4 UPON DUE CONSIDERATION of this petition for review of a

5 Board of Immigration Appeals (“BIA”) decision, it is hereby

6 ORDERED, ADJUDGED, AND DECREED that the petition for review

7 is DENIED.

8 Petitioners Yan Zhang and Hui Zhao, natives and citizens

9 of the People’s Republic of China, seek review of a December

10 2, 2019 decision of the BIA affirming a March 5, 2018 decision

11 of an Immigration Judge (“IJ”), which denied their

12 application for asylum, withholding of removal, and

13 protection under the Convention Against Torture (“CAT”). In

14 re Yan Zhang, Hui Zhao, Nos. A205 883 284/285 (B.I.A. Dec. 2,

15 2019), aff’g Nos. A205 883 284/285 (Immigr. Ct. N.Y.C. Mar.

16 5, 2018). We assume the parties’ familiarity with the

17 underlying facts and procedural history.

18 We review both the IJ’s and the BIA’s decisions. See

19 Likai Gao v. Barr,

(2d Cir. 2020). We

20 review factual findings for substantial evidence and

21 questions of law and the application of law to undisputed

22 facts de novo. See Yanqin Weng v. Holder,

, 513

23 (2d Cir. 2009). “[T]he administrative findings of fact are 2 1 conclusive unless any reasonable adjudicator would be

2 compelled to conclude to the contrary.” 8 U.S.C.

3 § 1252(b)(4)(B).

4 Zhang and Zhao began practicing Christianity in the

5 United States and alleged a fear of persecution in China as

6 Christians. To establish a well-founded fear of future

7 persecution, they were required to show they would be “singled

8 out individually for persecution” based on their religion or

9 that there was a “pattern or practice” of persecution of

10 similarly situated Christians in China. 8 C.F.R.

11 § 1208.13(b)(2); Jian Liang v. Garland,

(2d

12 Cir. 2021). “[T]o establish eligibility for relief based

13 exclusively on activities undertaken after . . . arrival in

14 the United States,” applicants must demonstrate that

15 “authorities in [their] country of nationality are (1) aware

16 of [their] activities or (2) likely to become aware of [their]

17 activities.” Hongsheng Leng v. Mukasey,

, 138

18 (2d Cir. 2008) (per curiam). “The appropriate burden of

19 proof varies according to the type of relief sought: an

20 applicant must show a clear probability in the withholding

21 context, and only a reasonable possibility in the asylum

3 1 context.”

(quotation marks omitted). Here, the

2 agency reasonably concluded that the petitioners did not

3 establish a well-founded fear of persecution.

4 The petitioners did not establish that they would be

5 singled out for persecution because they did not allege that

6 Chinese authorities were aware of their religious practice in

7 the United States, and they did not demonstrate a reasonable

8 possibility that Chinese authorities would become aware of

9 their religious activities. See id.; see also Jian Liang,

10

. 1 Zhang testified that she and her husband

11 were not church leaders, and she did not engage in religious

12 activities besides attending church and speaking about her

13 faith to friends and family. This record does not

14 demonstrate that they might be singled out for persecution.

15 The petitioners also did not meet their burden to

1 The petitioners’ argument that the IJ applied an incorrect standard from Hongsheng Leng is without merit. Hongsheng Leng’s requirement that petitioners make “some showing that authorities in [their] country of nationality are either aware of . . . or likely to become aware of [their] activities” applies to both asylum and withholding claims, though for asylum claims the burden of proof is only a “reasonable possibility.” Hongsheng Leng,

; see

(b). The IJ’s decision cited the reasonable possibility standard. 4 1 establish a pattern or practice of persecution of similarly

2 situated Christians. See Jian Liang,

3 (holding that petitioner failed to meet his burden where State

4 Department reports established that “treatment of Christians

5 in China varies by locality” and none of petitioner’s evidence

6 showed persecution occurring in his home province). Zhang

7 and Zhao asserted a fear of persecution based on the general

8 lack of religious freedom in China and the government’s

9 treatment of Christians who attend unregistered churches,

10 like their two friends who submitted letters. Zhang

11 testified inconsistently regarding whether she would attend

12 a registered or unregistered church. However, even assuming

13 the petitioners would attend an unregistered church in their

14 home city of Fuzhou, Fujian Province, their friends’ letters

15 did not state what kind of Christianity they practiced,

16 demonstrate the frequency of arrests of practitioners, or

17 establish that a person practicing the petitioners’ Methodist

18 faith in Fujian would experience similar treatment. See Jian

19 Hui Shao v. Mukasey,

, 155–56, 165 (2d Cir. 2008)

20 (concluding that “unattributed reports” or persecution of

21 “unspecified number” of people was insufficient to show a

5 1 “reasonable possibility” of persecution).

2 The news reports and country conditions evidence in the

3 record includes only one reference to a possible incident of

4 persecution in Fujian Province where the government banned a

5 Christian church. The State Department’s 2016 report on

6 religious freedom in China reflects that the Chinese

7 government has abused, imprisoned, and physically harmed some

8 Christians for practicing their religion, but also that

9 restrictions varied by locality and “in some areas, members

10 of unregistered churches said that they had more freedom than

11 in the past to conduct religious services, as long as they

12 gathered only in private and kept congregation numbers low.”

13 Cert. Admin. Record at 746.

14 Given the lack of evidence specific to Fujian Province

15 and the varying treatment of Christians, the agency

16 reasonably concluded that the petitioners failed to establish

17 a well-founded fear of persecution. See 8 C.F.R.

18 § 1208.13(b)(2); Jian Liang,

. That

19 determination is dispositive of asylum, withholding of

20 removal, and CAT relief. See Lecaj v. Holder,

,

21 119–20 (2d Cir. 2010) (failure to show fear of persecution

6 1 required for asylum “necessarily” precludes meeting higher

2 burden for withholding of removal and CAT relief). 2

3 For the foregoing reasons, the petition for review is

4 DENIED. All pending motions and applications are DENIED and

5 stays VACATED.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court

2 The CAT claim is also unexhausted and waived because the petitioners did not discuss it in their briefs to the BIA and do not argue it here. See Karaj v. Gonzales,

(2d Cir. 2006); Yueqing Zhang v. Gonzales,

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