    15-1291
    Zhang v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A200 703 839
                          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
    4th day of August, two thousand sixteen.

    PRESENT:
             JOSÉ A. CABRANES,
             DEBRA ANN LIVINGSTON,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    MIN BO ZHANG, AKA MIN LIANG ZHANG,
              Petitioner,

                     v.                                              15-1291
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                     Gary J. Yerman, Yerman & Associates,
                                        LLC, New York, New York.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General;
                                         Jennifer P. Williams, Senior
                                         Litigation Counsel; Colette J.
                                         Winston, Trial Attorney, Office of
                                         Immigration Litigation, United
                            States Department of Justice,
                            Washington, D.C.

    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

DENIED.

    Petitioner Min Bo Zhang, a native and citizen of the

People’s Republic of China, seeks review of a March 30, 2015,

decision of the BIA affirming a September 3, 2013, decision of

an Immigration Judge (“IJ”) denying him asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”).    In re Min Bo Zhang, No. A200 703 839 (B.I.A. Mar. 30,

2015), aff’g No. A200 703 839 (Immig. Ct. N.Y. City Sept. 3,

2013).    We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

    We have reviewed the IJ’s decision as modified by the BIA,

i.e., minus the IJ’s finding regarding past persecution, as to

which the BIA reasonably found that Zhang waived any challenge.

See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

(2d Cir. 2005); Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

104, 122 (2d Cir. 2007).    The applicable standards of review

are well established.    See 8 U.S.C. § 1252(b)(4)(B); see also

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

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Family Planning Claim

     It is undisputed that Zhang is not eligible for asylum

solely on the basis of his wife’s forced family planning

procedures.   See Shi Liang Lin v. U.S. Dep’t of Justice, 494

F.3d 296, 309-10 (2d Cir. 2007).    Nevertheless, he can still

qualify for asylum by demonstrating that (1) he engaged in

“resistance” to the family planning policy, and (2) he has a

well-founded fear of suffering persecution as a direct result

of his resistance.   See 8 U.S.C. § 1101(a)(42); see also Shi

Liang Lin, 494 F.3d at 313.

     Even assuming Zhang demonstrated “other resistance” based

on his expression of opposition to the family planning policy

and refusal to pay the fine levied against him and his wife,

see Shi Liang Lin, 494 F.3d at 312-13 & n.14, the agency did

not err in determining that he failed to establish a reasonable

possibility that officials would target him on account of that

resistance because his wife, who is similarly situated to this

extent, has not been arrested and remains unharmed in China

despite the unpaid fine.   See Melgar de Torres v. Reno, 191 F.3d

307, 313 (2d Cir. 1999).   The only remaining reason for Zhang

to fear arrest would be for pushing a government official.   The

IJ did not err in concluding that such an arrest would constitute

prosecution as opposed to persecution on account of a protected
                                3
ground.   See Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 239

(2d Cir. 1992).

    Because Zhang failed to demonstrate a well-founded fear of

persecution on account of a protected ground, the agency did

not err in denying him asylum, withholding of removal, and CAT

relief insofar as those claims were based on his resistance to

the family planning policy.   See Paul v. Gonzales, 444 F.3d 148,

156-57 (2d Cir. 2006).

Political Opinion Claim

    “[T]o establish a well-founded fear of persecution in the

absence of any evidence of past persecution, an alien must make

some showing that authorities in his country of nationality are

either aware of his activities or likely to become aware of his

activities.”    Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d

Cir. 2008).    There is no merit to Zhang’s contention that the

agency applied a heightened burden or otherwise erred in

concluding that he failed to satisfy this requirement.    See id.

Zhang admitted that the Chinese government is not aware of his

membership in the Party for Freedom and Democracy in China,

which he joined while in the United States.      And he did not

demonstrate a reasonable possibility that authorities are

likely to become aware of his membership based solely on his

participation in monthly group protests in New York.     See Y.C.
                                4
v. Holder, 741 F.3d 324, 334 (2d Cir. 2013); see also Jian Xing

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

of solid support in the record . . . , [an applicant’s] fear

is speculative at best.”).

    Finally, the agency did not err in concluding that Zhang

failed to demonstrate a pattern or practice of persecution

against similarly situated individuals.      Although the 2012

Department of State’s Human Rights Report does not mention

Zhang’s   political   party   or   the   Chinese   government’s

mistreatment of its members, the IJ reasonably considered the

report with respect to the treatment of members of the Chinese

Democracy Party and democracy activists generally.    See Y.C.,

741 F.3d at 333.   Moreover, the IJ recognized that the report

discussed the detention of several pro-democracy activists, but

nevertheless reasonably found that it did not demonstrate a

pattern or practice of persecution against individuals, such

as Zhang, who participate in a few pro-democracy political

activities abroad.    See id. at 335.

    Because Zhang failed to demonstrate that authorities are

likely to become aware of his political activities in the United

States or a pattern or practice of persecution of similarly

situated individuals, the agency reasonably concluded that he

failed to establish a well-founded fear of persecution.     See
                               5
id. at 334-35; Hongsheng Leng, 528 F.3d at 142.   That finding

was dispositive of asylum, withholding of removal, and CAT

relief insofar as those claims were based on his political

activities.    See Paul, 444 F.3d at 156-57.

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

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

is DISMISSED as moot.    Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

                              FOR THE COURT:
                              Catherine O=Hagan Wolfe, Clerk




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