     17-553
     Zhen v. Sessions
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A205 382 206
                             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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 15th day of October, two thousand eighteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            ROSEMARY S. POOLER,
 9            ROBERT D. SACK,
10                 Circuit Judges.
11   _____________________________________
12
13   WANG ZHEN, AKA WANG ZHENG,
14            Petitioner,
15
16                      v.                                       17-553
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Lee Ratner, Law Office of Michael
24                                      Brown, New York, NY.
25
26   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
27                                      Attorney General; John S. Hogan,
28                                      Assistant Director; Robbin K.
29                                      Blaya, Trial Attorney, Office of
30                                      Immigration Litigation, United
31                                      States Department of Justice,
32                                      Washington, DC.
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

4    is DENIED.

5        Petitioner Wang Zhen, a native and citizen of the

6    People’s Republic of China, seeks review of a February 3,

7    2017, decision of the BIA affirming a March 11, 2016,

8    decision of an Immigration Judge (“IJ”) denying Zhen’s

9    application for asylum, withholding of removal, and relief

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

11   Zhen, No. A205 382 206 (B.I.A. Feb. 3, 2017), aff’g No.

12   A205 382 206 (Immig. Ct. N.Y. City Mar. 11, 2016).   We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we review the

16   IJ’s decision as modified by the BIA and review only the

17   ground for decision on which the BIA relied—Zhen’s failure

18   to meet his burden of proof. See Xue Hong Yang v. U.S.

19   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The

20   applicable standards of review are well established. See

21   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

22   510, 513 (2d Cir. 2009). For the reasons that follow, we

23   conclude that the agency did not err in determining that
                                   2
1    Zhen failed to demonstrate past persecution or a well-

2    founded fear of future persecution.

3    I.   Past Persecution

4         While the Immigration and Nationality Act does not

5    define persecution, see Baba v. Holder, 569 F.3d 79, 85 (2d

6    Cir. 2009), the BIA has defined it as a “threat to the life

7    or freedom of, or the infliction of suffering or harm upon,

8    those who differ in a way regarded as offensive.” Matter of

9    Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985), overruled

10   in part on other grounds by INS v. Cardoza-Fonseca, 480

11   U.S. 421 (1987); accord Ivanishvili v. U.S. Dep’t of

12   Justice, 433 F.3d 332, 342 (2d Cir. 2006).   Past

13   persecution can be based on harm other than threats to life

14   or freedom, “includ[ing] non-life-threatening violence and

15   physical abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226

16   n.3 (2d Cir. 2006), but the harm must be sufficiently

17   severe to rise above “mere harassment,” Ivanishvili, 433

18   F.3d at 341. The difference between harassment and

19   persecution is “necessarily one of degree that must be

20   decided on a case-by-case basis.” Id.

21        The agency did not err by determining that Zhen’s past

22   harm did not rise to the level of persecution.       8 U.S.C.

23   § 1252(b)(4) (A determination that an applicant has failed to
                                   3
1    meet his burden is “conclusive unless manifestly contrary to

2    the law and an abuse of discretion.”).    Zhen testified that

3    five police officers beat him with soft batons, punched him,

4    and kicked him until other church members interceded and he

5    managed to escape. Although he testified that he was bleeding

6    from his face, body, and legs, he did not further describe

7    his injuries or require any medical treatment.     The agency

8    considered this testimony, and the fact that Zhen was neither

9    arrested nor detained, and reasonably determined that the

10   harm did not rise to the level of persecution.   See Jian Qiu

11   Liu v. Holder, 632 F.3d 820 (2d Cir. 2011) (affirming agency’s

12   determination that applicant’s past harm—being slapped in the

13   face; punched repeatedly by several family planning officers

14   in the face, chest, and back; and detained for two days—did

15   not rise to the level of persecution).

16       Zhen, relying on Beskovic, contends that the agency

17   ignored the context of his beating and that any harm rises to

18   the level of persecution when inflicted on an individual

19   engaged in a protected act. Zhen’s argument fails. Beskovic

20   holds that “[t]he BIA must . . . be keenly sensitive to the

21   fact that a ‘minor beating’ or, for that matter, any physical

22   degradation designed to cause pain, humiliation, or other

23   suffering, may rise to the level of persecution if it occurred
                                    4
1    in the context of an arrest or detention on the basis of a

2    protected ground.” 467 F.3d at 226 (emphasis added). Because

3    the agency considered the context of the beating, which did

4    not “occur[] in the context of an arrest or detention,” id.,

5    Zhen’s reliance on Beskovic is misplaced.

6    II. Future Persecution

7        Absent past persecution, an applicant may still

8    establish eligibility for asylum by demonstrating an

9    independent well-founded fear of future persecution, which

10   is a “subjective fear that is objectively reasonable.” Dong

11   Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d Cir. 2009)

12   (internal quotation marks omitted); see also Y.C. v.

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

14   claim, the applicant must show a reasonable possibility of

15   future persecution.” (internal quotation marks omitted));

16   Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir.

17   2005) (“In the absence of solid support in the record,” a

18   fear of persecution is not well founded and “is speculative

19   at best.”). “An asylum applicant can show a well-founded

20   fear of future persecution in two ways: (1) by

21   demonstrating that he or she ‘would be singled out

22   individually for persecution’ if returned, or (2) by

23   proving the existence of a ‘pattern or practice in
                                   5
1    [the] . . . country of nationality . . . of persecution of

2    a group of persons similarly situated to the applicant’ and

3    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           Zhen does not challenge the agency’s finding that he

7    failed to demonstrate a pattern or practice of persecution.

8    Nor did the agency err by concluding that Zhen failed to

9    demonstrate a reasonable possibility that he would be singled

10   out for persecution.        8 U.S.C. § 1252(b)(4).        Although Zhen

11   submitted letters from his father and a friend stating that

12   the police continued to search for him after he left China,

13   the agency reasonably declined to credit the letters because

14   they were authored by interested witnesses unavailable for

15   cross-examination. Y.C., 741 F.3d at 334 (affirming agency’s

16   determination that letter from a relative in China—stating

17   that    he   had   been   visited   by   police    who   were   aware   of

18   applicant’s pro-democracy activities—was entitled to limited

19   weight because it was unsworn and submitted by an interested

20   witness). Zhen does not challenge the IJ’s treatment of these

21   letters or the IJ’s finding that the U.S. State Department’s

22   2013 International Religious Freedom Report did not document

23   a   single    incident    of   persecution    of   underground    church
                                         6
1    members in Zhen’s home region, which he had the burden to

2    show given the regional variation in China’s treatment of

3    underground church practitioners.    See Jian Hui Shao v.

4    Mukasey, 546 F.3d 138, 149-50 (2d Cir. 2008) (observing that

5    where enforcement of a policy varies, it is the applicant’s

6    burden to show a well-founded fear of persecution in his

7    locality in China).

8        Because the agency reasonably found that Zhen failed to

9    demonstrate a well-founded fear of persecution, it did not

10   err in denying asylum or in concluding that he necessarily

11   failed to meet the higher burdens for withholding of removal

12   and CAT relief. Y.C., 741 F.3d at 335.

13       For the foregoing reasons, the petition for review is

14   DENIED.

15

16                          FOR THE COURT:
17                          Catherine O’Hagan Wolfe
18                          Clerk of Court




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