     14-2822
     Zheng v. Lynch
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A088 782 838
                           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   4th day of April, two thousand sixteen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            RAYMOND J. LOHIER, JR.,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   LIAN HUA ZHENG,
14            Petitioner,
15
16                    v.                                             14-2822
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Louis H. Klein, The Kasen Law Firm,
24                                       PLLC, Flushing, NY.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Cindy
28                                       S. Ferrier, Assistant Director;
29                                       Timothy G. Hayes, Attorney, Office
30                                       of Immigration Litigation, United
31                                       States Department of Justice,
32                                       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           Lian Hua Zheng, a native and citizen of the People’s

6    Republic of China, seeks review of a July 18, 2014, decision

7    of the BIA affirming the July 16, 2013, decision of an

8    Immigration Judge (“IJ”), denying her asylum, withholding of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Lian Hua Zheng, No. A088 782 838 (B.I.A. July

11   18, 2014), aff’g No. A088 782 838 (Immig. Ct. N.Y. City July

12   16, 2013).         We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14          Under the circumstances of this case, we have reviewed both

15   the IJ’s and the BIA’s opinions “for the sake of completeness.”

16   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

17   2006).       The    applicable   standards    of    review   are    well

18   established.       8 U.S.C. § 1252(b)(4)(B); Su Chun Hu v. Holder,

19   579 F.3d 155, 158 (2d Cir. 2009).

20     I.     Religion Claim

21          The   agency   may,   “[c]onsidering   the   totality   of   the

22   circumstances,” base a credibility finding on inconsistencies

23   in an asylum applicant’s statements and other record evidence


                                        2
1    “without regard to whether” they go “to the heart of the

2    applicant’s claim.”        8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

3    Lin   v.   Mukasey,     534   F.3d   162,    163-64       (2d   Cir.   2008).

4    Substantial evidence supports the agency’s determination that

5    Zheng’s claim of religious persecution was not credible.

 6         The agency reasonably relied on an inconsistency between

 7   Zheng’s hearing testimony and her asylum application regarding

 8   whether she was detained and beaten in China for assisting

 9   illegal North Korean refugees and for attending an underground

10   Christian church in China, or whether she was arrested solely

11   based on her assistance to refugees.             See Xiu Xia Lin, 534 F.3d

12   at 166-67 & n.3.       The agency reasonably also relied on Zheng’s

13   failure to corroborate her claim.           See Biao Yang v. Gonzales,

14   496 F.3d 268, 273 (2d Cir. 2007).        None of Zheng’s corroborating

15   evidence provided that her arrest was related to her involvement

16   in an underground church.       Given the significant inconsistency

17   and lack of corroborating evidence, substantial evidence

18   supports the agency’s determination that Zheng was not credible

19   as to her claim of past persecution based on her practice of

20   Christianity.    See Xiu Xia Lin, 534 F.3d at 165-66.

21         Absent    past     persecution,       an    alien     may   establish

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

23   future persecution, 8 C.F.R. § 1208.13(b)(2), which must be both


                                          3
1    subjectively     credible      and            objectively    reasonable,

2    Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

3    To establish a well-founded fear, an applicant must show either

4    a reasonable possibility that she would be singled out for

5    persecution or that the country of removal has a pattern or

6    practice of persecuting individuals similarly situated to her.

7    8 C.F.R. § 1208.13(b)(2)(i), (iii).              “[The] alien must make

8    some showing that authorities in h[er] country of nationality

9    are either aware of h[er] activities or likely to become aware

10   of h[er] activities.”    Hongsheng Leng v. Mukasey, 528 F.3d 135,

11   143 (2d Cir. 2008).   The agency did not err in finding that Zheng

12   failed to demonstrate a well-founded fear of future persecution

13   based on her practice of Christianity.

14       Zheng’s testimony that authorities are aware of her

15   religion was not credible.     Further, because tens of millions

16   of Christians practice in unregistered churches in China

17   without   sanction,   Zheng   did       not    demonstrate   either   that

18   authorities are likely to become aware of her practice or that

19   a reasonable possibility existed that they would persecute her

20   on that ground.       Accordingly, the agency did not err in

21   determining that Zheng failed to demonstrate a reasonable

22   possibility that she would be singled out for persecution or

23   the systemic or pervasive persecution of similarly situated


                                         4
1    Christians sufficient to demonstrate a pattern or practice of

2    persecution in China.     See 8 C.F.R. § 1208.13(b)(2) (i) (iii);

3    Hongsheng Leng, 528 F.3d at 142-43; In re A-M-, 23 I. & N. Dec.

4    737, 741 (B.I.A. 2005).        That finding was dispositive of

5    asylum, withholding of removal, and CAT relief insofar as those

6    claims were based on Zheng’s religion.      See Paul v. Gonzales,

7    444 F.3d 148, 156-57 (2d Cir. 2006).

8      II. Political Claim

9        To establish eligibility for asylum and withholding of

10   removal, an “applicant must establish that race, religion,

11   nationality, membership in a particular social group, or

12   political opinion was or will be at least one central reason

13   for persecuting the applicant.”      8 U.S.C. § 1158(b)(1)(B)(i);

14   8 U.S.C. § 1231(b)(3)(A); see also In re J-B-N- and S-M-, 24

15   I. & N. Dec. 208, 212-14 (B.I.A. 2007).    In order to demonstrate

16   that persecution (past or prospective) bears a nexus to an

17   applicant’s political opinion, the “applicant must [] show,

18   through   direct   or     circumstantial   evidence,   that   the

19   persecutor’s motive to persecute arises from the applicant’s

20   political belief.”      Yueqing Zhang v. Gonzales, 426 F.3d 540,

21   545 (2d Cir. 2005) (citing INS v. Elias-Zacarias, 502 U.S. 478,

22   483 (1992)).   “[T]he enforcement of generally applicable law

23   cannot be said to be on account of the offender’s political


                                      5
1    opinion, even if the offender objects to the law.”               Jin Jin Long

2    v. Holder, 620 F.3d 162, 166 (2d Cir. 2010).                        However,

3    “prosecution that is pretext for political persecution is not

4    on account of law enforcement.”            Id.

5           In Jin Jin Long, we remanded Long’s proceedings for further

6    consideration of his claim that he was persecuted on account

7    of his political opinion when he was arrested, detained, and

8    repeatedly beaten for providing assistance to North Korean

9    refugees who had illegally entered China.           In doing so, we noted

10   that    the    Chinese      government’s   detention       of    individuals

11   suspected of aiding North Korean refugees “can be seen as

12   enforcement of the law (assuming there is a law prohibiting

13   assistance to North Korean refugees), but it [might] also

14   suggest       an   active     resistance   to    China’s    North     Korean

15   immigration policies, and an attempt at suppression.”                 Id. at

16   167.    We found that “the BIA failed to consider a number of facts

17   that may support an inference that [Long’s] arrest and detention

18   were pretextual.”           Id.   Specifically, it failed to consider

19   Long’s credible testimony that he was never formally charged

20   and that he was “subjected to prolonged detention and repeated

21   physical abuse,” and it failed to note that “U.S. State

22   Department country reports on China suggest[ed] that the North

23   Korean refugee issue is politically charged.”              Id.    Therefore,


                                           6
1    we remanded for the BIA to determine “whether there is a law

2    barring assistance to North Koreans, and (whether there is or

3    is not) in what circumstances persecution of those who assist

4    North Korean refugees would constitute persecution on account

5    of a protected ground.”    Id. at 164; see also id. at 167-68.

6    In Jin Jin Long, we denied the petition of a second individual,

7    Song, whom police sought to arrest for arranging to smuggle

8    family from North Korea, because the record did not support an

9    inference that Song acted from a political motive or that

10   government officials were motivated to pursue him to suppress

11   his opinion.   Id. at 168.

12       In   Zheng’s   case,   the   evidence   does   not    compel   the

13   conclusion that police arrested her for violating immigration

14   laws as a pretext for suppressing her political opposition to

15   China’s policy towards North Korean refugees.            Unlike Long,

16   Zheng admitted that she assisted illegal North Korean refugees

17   in finding employment and that this act formed the underlying

18   basis for her arrest, and she submitted evidence that she was

19   detained pursuant to the Criminal Procedure Laws of the People’s

20   Republic of China and her family was formally notified of her

21   detention.   And, unlike the record in Jin Jin Long, the record

22   have contains evidence of both local and national laws in China

23   that prohibit individuals from providing assistance to illegal


                                      7
1    refugees (whether from North Korea or elsewhere).                Id. at

2    167-68.   Further, that Zheng’s assistance was discovered only

3    after a legitimate tax audit at the factory where she had helped

4    refugees obtain employment indicated that the police were not

5    looking   for   a   pretext   to   arrest   her   on   account   of   her

6    humanitarian assistance to illegal North Korean refugees.

7    Although punishment that is disproportionate to the crime

8    committed may evidence persecution rather than legitimate

9    prosecution, see id. at 167, Zheng’s abuse, was not extreme or

10   repeated, and thus the agency was not compelled to conclude on

11   this fact alone that police were motivated to detain and harm

12   her on account of an imputed political opinion.         See id. at 166,

13   168; see also Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir.

14   2011); Yueqing Zhang, 426 F.3d at 545.

15       Because, because the agency reasonably found that Zheng

16   failed to demonstrate past persecution or a well-founded fear

17   of persecution on account of her political opinion, it did not

18   err in denying asylum and withholding of removal.         See 8 U.S.C.

19   § 1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A).              The agency

20   also did not err in denying Zheng’s claim for CAT relief.         Zheng

21   did not allege that the abuse she suffered caused her “severe

22   pain or suffering,” 8 C.F.R. § 1208.18(a)(1); Kyaw Zwar Tun v.

23   U.S. INS, 445 F.3d 554, 567 (2d Cir. 2006), and evidence of a


                                         8
1    generalized risk of torture of those detained in China is

2    insufficient to establish eligibility for CAT relief, see Mu

3    Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir.

4    2005).

5        For the foregoing reasons, the petition for review is

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

7    that the Court previously granted in this petition is VACATED,

8    and any pending motion for a stay of removal in this petition

9    is DISMISSED as moot.   Any pending request for oral argument

10   in this petition is DENIED in accordance with Federal Rule of

11   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

12   34.1(b).

13                               FOR THE COURT:
14                               Catherine O’Hagan Wolfe, Clerk




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