     16-3202
     Zou v. Sessions
                                                                                       BIA
                                                                               Van Wyke, IJ
                                                                               A089 167 620
                            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   16th day of November, two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            ROBERT D. SACK,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JIN ZOU,
14                     Petitioner,
15
16                     v.                                            16-3202
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Zhou Wang, New York, NY.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
26                                       Attorney General; Julie M. Iversen,
27                                       Senior Litigation Counsel; Kathryn
28                                       M. McKinney, Attorney; Lindsay G.
29                                       Donahue, Law Clerk, 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 is

4    DENIED.

5         Petitioner Jin Zou, a native and citizen of the People’s

6    Republic of China, seeks review of an August 31, 2016, decision

7    of the BIA affirming an April 23, 2015, decision of an

8    Immigration Judge (“IJ”) denying Zou’s application for asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).    In re Jin Zou, No. A 089 167 620 (B.I.A. Aug.

11   31, 2016), aff’g No. A 089 167 620 (Immig. Ct. N.Y. City Apr. 23,

12   2015).    We assume the parties’ familiarity with the underlying

13   facts and procedural history in this case.

14        In lieu of filing a brief, the Government moves for summary

15   denial of Zou’s petition for review.         Summary denial is

16   warranted only if a petition is frivolous, Pillay v. INS, 45

17   F.3d 14, 17 (2d Cir. 1995), and Zou has filed his merits brief.

18   Accordingly, we treat the Government’s motion as a response to

19   that brief, and deny the petition.

20   I.   Adverse Credibility Determination

21        Under the circumstances of this case, we have reviewed the

22   IJ’s decision as modified by the BIA and consider only whether

23   the factual findings that the BIA relied on provide substantial
                                    2
1    evidence for the adverse credibility determination.       See Xiu

2    Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008)

3    (substantial evidence review); Xue Hong Yang v. U.S. Dep’t of

4    Justice, 426 F.3d 520, 522 (2d Cir. 2005) (reviewing IJ’s

5    decision as modified by BIA).

6           Zou raises arguments identical to those in his brief to the

7    BIA.    As a result, he challenges findings made by the IJ that

8    were not relied on by the BIA and that are no longer part of

9    the agency decision.     See Xue Hong Yang, 426 F.3d at 522.   In

10   addition, by failing to challenge any of the four grounds the

11   BIA relied on in upholding the adverse credibility

12   determination, he has waived any challenge to them.    See Shunfu

13   Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008) (petitioner

14   waived challenge to grounds for adverse credibility ruling that

15   were not raised in brief); see also Yueqing Zhang v. Gonzales,

16   426 F.3d 540, 545 n.7 (2d Cir. 2005) (providing that issues not

17   raised in an opening brief are waived).     Accordingly, Zou has

18   waived any challenge to the adverse credibility determination

19   and we reach the merits only as to his fear of future persecution

20   based on his practice of Christianity in the United States.

21 II.      Well-Founded Fear of Persecution

22          The agency accepted that Zou practices Christianity in the

23   United States.    To establish a well-founded fear of persecution
                                      3
1    in the absence of past persecution, Zou was required to show

2    an objectively reasonable fear of future persecution.

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

4    Because his fear would be based solely on activities in the

5    United States, Zou was required to “make some showing that

6    authorities in his country of nationality are (1) aware of his

7    activities or (2) likely to become aware of his activities.”

 8   Hongsheng Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008).

 9   The objective component can be satisfied either (1) by

10   establishing a reasonable possibility that he “would be singled

11   out individually for persecution” or (2) by demonstrating “a

12   pattern or practice . . . of persecution of a group of persons

13   similarly situated to [him].”   Hongsheng Leng, 528 F.3d 135 at

14   142 (quotation marks and citation omitted); see 8 C.F.R.

15   § 1208.13(b)(2)(iii).   A pattern or practice of persecution is

16   the “systemic or pervasive” persecution of a group.   In re A-M-,

17   23 I. & N. Dec. 737, 741 (B.I.A. 2005); see Mufied v. Mukasey,

18   508 F.3d 88, 92-93 (2d Cir. 2007).    Given that the country

19   conditions evidence showed that only segments of the Christian

20   population are targeted for arrest and detention and the absence

21   of any reports of arrest in Zou’s home province of Fujian, the

22   agency reasonably concluded that he did not establish that the

23   Chinese government would become aware of his Christianity or
                                   4
1    target him on this basis.    See Shi Jie Ge v. Holder, 588 F.3d

2    90, 95-96 (2d Cir. 2009).

3 III.    Motion to Remand

4         We review the BIA’s denial of a motion to remand for abuse

5    of discretion, and review the BIA’s conclusions regarding

6    country conditions for substantial evidence.     See Li Yong Cao

7    v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005); Jian

8    Hui Shao v. Mukasey, 546 F.3d 138, 157 (2d Cir. 2008).    “An abuse

9    of discretion may be found in those circumstances where the

10   Board's decision provides no rational explanation,

11   inexplicably departs from established policies . . . is devoid

12   of any reasoning, or contains only summary or conclusory

13   statements . . . that is to say, where the Board has acted in

14   an arbitrary or capricious manner.”   Ke Zhen Zhao v. U.S. Dep’t

15   of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (citations omitted).

16        The BIA erred in concluding that the State Department’s

17   2014 International Religious Freedom report was available at

18   the time of Zou’s February 2015 hearing because it was not

19   published until October 2015.    However, the BIA reasonably

20   concluded that the new reports would not change the outcome of

21   Zou’s case.   Zou does not cite to any information in either

22   report that would alter the agency’s conclusion.         The 2014

23   report does not reflect any incidents of arrest or harassment
                                   5
1    of Christians in Zou’s home province or a significant increase

2    in the number of Christians arrested throughout China.     See

3    Jian Hui Shao, 546 F.3d at 165 (upholding BIA’s requirement that

4    applicant demonstrate that officials in his local area enforce

5    a government policy when evidence demonstrates local variations

6    in enforcement of that policy).    The second report merely

7    incorporates the first by reference and provided no independent

8    basis for remand.

9        For the foregoing reasons, the petition for review is

10   DENIED.   As we have completed our review, the Government’s

11   motion for summary denial is DENIED as moot.     Any pending

12   request for oral argument in this petition is DENIED in

13   accordance with Federal Rule of Appellate Procedure 34(a)(2),

14   and Second Circuit Local Rule 34.1(b).

15                                FOR THE COURT:
16                                Catherine O’Hagan Wolfe, Clerk




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