     16-885
     Zheng v. Sessions
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A206 074 191

                              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.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   17th day of April, two thousand seventeen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            DENNIS JACOBS,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   MEI ZHENG,
14            Petitioner,
15
16                       v.                                          16-885
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                       Dehai Zhang, Flushing, N.Y.
24
25   FOR RESPONDENT:                       Benjamin C. Mizer, Principal
26                                         Deputy Assistant Attorney
27                                         General; Douglas E. Ginsburg,
28                                         Assistant Director; Paul Fiorino,
29                                         Senior Litigation Counsel,
30                                         Office of Immigration Litigation,
31                                         United States Department of
32                                         Justice, Washington, D.C.
1         UPON DUE CONSIDERATION of this petition for review of a

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

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5         Petitioner Mei Zheng, a native and citizen of China, seeks

6    review of a March 8, 2016, decision of the BIA affirming a

7    January 26, 2015, decision of an Immigration Judge (“IJ”)

8    denying Zheng’s application for asylum, withholding of removal,

9    and relief under the Convention Against Torture (“CAT”) and

10   finding that Zheng had knowingly filed a frivolous asylum

11   application.    In re Mei Zheng, No. A206 074 191 (B.I.A. Mar.

12   8, 2016), aff’g No. A206 074 191 (Immig. Ct. N.Y. City Jan. 26,

13   2015).    We assume the parties’ familiarity with the underlying

14   facts and procedural history in this case.

15        We have reviewed the decisions of both the IJ and the BIA.

16   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).   The

17   applicable standards of review are well established.          See

18   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

19   513 (2d Cir. 2009).

20   I.   Frivolous Finding

21        “A person who makes an application for asylum determined

22   to be ‘frivolous,’ or deliberately and materially false, is

23   subject to a grave penalty: permanent ineligibility for most
                                     2
1    forms of relief under the immigration laws.”            Mei Juan Zheng

2    v. Mukasey, 514 F.3d 176, 178 (2d Cir. 2008); see 8 U.S.C.

3    § 1158(d)(6).       “Given    the       serious    consequences    of     a

4    frivolousness finding, the [governing] regulation provides a

5    number of procedural safeguards[:] . . . (1) notice to the alien

6    of the consequences of filing a frivolous application; (2) a

7    specific finding by the Immigration Judge or the Board that the

8    alien knowingly filed a frivolous application; (3) sufficient

9    evidence in the record to support the finding that a material

10   element of the asylum application was deliberately fabricated;

11   and (4) an indication that the alien has been afforded

12   sufficient opportunity to account for any discrepancies or

13   implausible aspects of the claim.”          Matter of Y-L-, 24 I. & N.

14   Dec. 151, 155 (B.I.A. 2007) (discussing 8 C.F.R. § 1208.20).

15         Zheng’s assertions that the agency failed to comply with

16   the required procedures are meritless.            First, the agency did

17   not   err   by   finding   that   Zheng     received   notice     of    the

18   consequences of filing a frivolous application by virtue of the

19   written notice contained in her application.              See Niang v.

20   Holder, 762 F.3d 251, 254 (2d Cir. 2014) (“Although we

21   understand that IJs frequently provide a warning of the

22   consequences of filing a frivolous application, nothing in the

23   INA expressly requires that the warning be given by an IJ.              The
                                         3
1    INA requires only that the applicant ‘receive []’ notice at the

2    time of filing.” (quoting 8 U.S.C. § 1158(d)(6)) (internal

3    citation omitted)).       While Zheng claims that she did not

4    understand the written warnings in her application because she

5    “was not fluent” in English, the agency’s contrary finding is

6    supported     by     substantial        evidence.        See      8 U.S.C.

7    § 1252(b)(4)(B)      (“[A]dministrative       findings    of   fact     are

8    conclusive unless any reasonable adjudicator would be compelled

9    to conclude to the contrary[.]”); see also Siewe v. Gonzales,

10   480 F.3d 160, 167 (2d Cir. 2007) (“Decisions as to . . . which

11   of competing inferences to draw are entirely within the province

12   of the trier of fact.” (internal quotation marks omitted)).

13       Second, the IJ did not fail to separately analyze Zheng’s

14   explanation    for   filing   the   frivolous       application    as   she

15   contends.     The IJ separately considered Zheng’s explanation

16   “that she was spurred on . . .            by the first attorney that

17   represented her”; however, the IJ rejected that explanation

18   because Zheng “copied material . . . which she knew to be false

19   in her own handwriting, and signed it[;] . . .                 knowingly

20   submitted letters to the court . . . that she knew to be

21   falsified[; and] . . . acknowledged that she lied under oath

22   when she testified before an asylum officer about a significant

23   element of her claim.”
                                         4
1        Finally, Zheng’s challenge to the frivolousness finding on

2    the grounds that she withdrew her application is misplaced.

3    The IJ was entitled to consider Zheng’s submission of false

4    statements, even though they were later withdrawn, when she

5    determined that a frivolous application had been made.           Matter

6    of Y-L-, 24 I. & N. Dec. at 155; see also Niang, 762 F.3d at

7    253-54   (upholding     a   frivolousness     finding    based   on    an

8    applicant’s filing of a false asylum application that was

9    withdrawn prior to merits hearing).

10   II. Well-Founded Fear of Future Persecution

11       Absent     past     persecution,   an     alien     may   establish

12   eligibility for asylum by demonstrating a well-founded fear of

13   future persecution, which is a “subjective fear that is

14   objectively reasonable.”       Dong Zhong Zheng v. Mukasey, 552 F.3d

15   277, 284 (2d Cir. 2009) (internal quotation marks omitted); see

16   8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b)(2); see also Y.C.

17   v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“For an asylum

18   claim, the applicant must show a reasonable possibility of

19   future persecution.” (internal quotation marks omitted)).             “An

20   asylum applicant can show a well-founded fear of future

21   persecution in two ways: (1) by demonstrating that he or she

22   ‘would   be   singled    out   individually    for    persecution’     if

23   returned, or (2) by proving the existence of a ‘pattern or
                                        5
1    practice    in    [the] . . . country      of   nationality . . . of

2    persecution of a group of persons similarly situated to the

3    applicant’ and establishing his or her ‘own inclusion in, and

4    identification with, such group.’”           Y.C., 741 F.3d at 332

5    (quoting 8 C.F.R. § 1208.13(b)(2)(iii)).

6        First, the agency did not err in concluding that Zheng

7    failed to show a reasonable possibility that she would be

8    singled out individually for persecution.        See Jian Xing Huang

9    v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of

10   solid support in the record,” a fear of persecution is not

11   objectively      reasonable    and   is   “speculative   at   best.”).

12   “Importantly, ‘to establish a well-founded fear of persecution

13   in the absence of any evidence of past persecution, an alien

14   must make some showing that authorities in his [or her] country

15   of nationality are either aware of his [or her] activities or

16   likely to become aware of his [or her] activities.’”          Y.C., 741

17   F.3d at 332 (quoting Hongsheng Leng v. Mukasey, 528 F.3d 135,

18   143 (2d Cir. 2008)).          After retracting her original claim,

19   Zheng did not assert that Chinese authorities are aware of her

20   religious practice, and she testified that no one in China other

21   than her family knows that she became a Christian in the United

22   States.    Further, the IJ alternatively based her determination

23   on her finding that Zheng’s testimony that she mailed religious
                                          6
1    materials to China was not credible – a finding that Zheng does

2    not challenge in her brief.

3        Second, the agency did not err in concluding that Zheng

4    failed to establish a pattern or practice of persecution of

5    Christians in China.    To establish a pattern or practice of

6    persecution against a particular group, an applicant must

7    demonstrate that the harm to that group is “systemic or

8    pervasive.”   In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005);

9    see Mufied v. Mukasey, 508 F.3d 88, 92-93 (2d Cir. 2007)

10   (accepting the BIA’s standard as reasonable, while noting that

11   “[w]ithout further elaboration [the standard does not make

12   clear] how systemic, pervasive, or organized persecution must

13   be before the Board would recognize it as a pattern or

14   practice”).   Here, the agency reasonably found that religious

15   activities are not punished or restricted in a widespread

16   pattern.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

17   315, 342 (2d Cir. 2006) (holding that the weight accorded to

18   an applicant’s evidence “lie[s] largely within the discretion

19   of the IJ” (internal quotation marks omitted).       Given this

20   nationwide variation, the agency reasonably concluded that

21   Zheng failed to establish a pattern or practice of persecution

22   of Christians in China.   See Santoso v. Holder, 580 F.3d 110,

23   112 (2d Cir. 2009) (affirming agency’s finding of no pattern
                                    7
1    or practice of persecution of Catholics in Indonesia where

2    evidence showed that religious violence was not nationwide and

3    that Catholics in many parts of the country were free to practice

4    their faith).

5         Accordingly, because the agency reasonably found that

6    Zheng failed to demonstrate a well-founded fear of persecution,

7    it did not err in denying asylum or in concluding that she

8    necessarily failed to meet the higher burden required for

9    withholding of removal or her burden for CAT relief.       See Lecaj

10   v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).

11        For the foregoing reasons, the petition for review is

12   DENIED.   As we have completed our review, any stay of removal

13   that the Court previously granted in this petition is VACATED.

14   Any pending request for oral argument in this petition is DENIED

15   in   accordance   with   Federal   Rule   of   Appellate   Procedure

16   34(a)(2), and Second Circuit Local Rule 34.1(b).

17                                  FOR THE COURT:
18                                  Catherine O’Hagan Wolfe, Clerk




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