     17-750
     Yu v. Sessions
                                                                                  BIA
                                                                            Loprest, IJ
                                                                          A200 165 457
                        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 6th day of June, two thousand eighteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            JOSÉ A. CABRANES,
 9            RICHARD C. WESLEY,
10                 Circuit Judges.
11   _____________________________________
12
13   FENG YU,
14                    Petitioner,
15                    v.                                         17-750
16                                                               NAC
17   JEFFERSON B. SESSIONS III,
18   UNITED STATES ATTORNEY GENERAL,
19            Respondent.
20   _____________________________________
21
22   FOR PETITIONER:                   Alexander G. Rojas, New York, NY.
23
24   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
25                                     Attorney General; Jeffrey R.
26                                     Meyer, Imran R. Zaidi, Attorneys,
27                                     Office of Immigration Litigation,
28                                     United States Department of
29                                     Justice, 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 Feng Yu, a native and citizen of the People’s

6    Republic of China, seeks review of a February 17, 2017,

7    decision of the BIA affirming a February 9, 2016, decision of

8    an Immigration Judge (“IJ”) denying Yu’s application for

9    asylum,   withholding   of   removal,   and   relief   under   the

10   Convention Against Torture (“CAT”).     In re Feng Yu, No. A 200

11   165 457 (B.I.A. Feb. 17, 2017), aff’g No. A 200 165 457

12   (Immig. Ct. N.Y. City Feb. 9, 2016).     We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       In lieu of filing a brief, the Government moves for

16   summary denial of Yu’s petition for review.       Summary denial

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

18   45 F.3d 14, 17 (2d Cir. 1995), and Yu has filed his merits

19   brief.    Accordingly, we treat the Government’s motion as a

20   response to that brief, and deny the petition.


                                     2
1           Under the circumstances of this case, we have reviewed

2    both    the   BIA’s        and   IJ’s    decisions         “for    the    sake    of

3    completeness.”      Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

4    524, 528 (2d Cir. 2006).                 We review the agency’s legal

5    conclusions de novo and its factual findings for substantial

6    evidence.     Y.C. v. Holder, 741 F.3d 325, 332 (2d Cir. 2013).

7    “[T]he administrative findings of fact are conclusive unless

8    any reasonable adjudicator would be compelled to conclude to

9    the contrary.”      8 U.S.C. § 1252(b)(4)(B).

10          Yu had the burden of proving a well-founded fear of

11   persecution on account of either his political activism with

12   the U.S. branch of the China Democracy Party (“CDP”) or his

13   practice of Christianity in the United States.                            8 U.S.C.

14   §§ 1101(a)(42),       1158(b)(1)(B)(i).               To    do    this,    he    was

15   required to show that he subjectively feared persecution and

16   that his fear was objectively reasonable.                     Ramsameachire v.

17   Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).                        The objective

18   component     can     be     satisfied       either    by     establishing       “a

19   reasonable    possibility         that       [he]   would     be    singled      out

20   individually for persecution . . . or “a pattern or practice

21   . . . of persecution of a group of persons similarly situated
                                              3
1    to the applicant . . . .”              8 C.F.R. § 1208.13(b)(2)(iii);

2    Y.C., 741 F.3d at 332.

3          To demonstrate that he would be individually targeted

4    for persecution, Yu first had to show a reasonable possibility

5    that Chinese authorities were either already aware, or likely

6    to    become   aware,    of      his       religious     or   pro-democracy

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

8    Cir. 2008).     The agency was permitted to discount letters

9    from Yu’s mother and brother in China describing Chinese

10   police visits.       Y.C., 741 F.3d at 334.            Absent the letters,

11   the agency reasonably concluded that the possibility that

12   Chinese officials would be aware of Yu’s activities based on

13   his   participation     in    protests       or   publication    of    online

14   articles was too speculative to warrant relief.                       See id.

15   (Chinese government’s monitoring of internet postings does

16   not mean that it “is aware of every anti-Communist or pro-

17   democracy piece of commentary published online.”); Jian Xing

18   Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (absent “solid

19   support   in   the    record,”    an       applicant’s    fear   of    future

20   persecution is “speculative at best”).


                                            4
1         Regarding Yu’s pattern or practice claim, the agency

2    reasonably concluded that he was not similarly situated to

3    CDP members who were arrested because those members were more

4    politically active than Yu and engaged in activities in China,

5    whereas Yu joined the CDP in the United States.                Y.C., 741

6    F.3d at 334-37.      And the agency reasonably relied on the

7    State   Department’s     2013    religious    freedom      report,   which

8    reflects   that    the   Chinese     government’s    policies        toward

9    Christians and underground churches vary by province and does

10   not include any reports of arrests in Yu’s home province

11   (Jilin), to conclude that Yu did not establish a pattern or

12   practice of persecution of similarly situated Christians.

13   Jian Hui Shao v. Mukasey, 546 F.3d 138, 159-62, 174 (2d Cir.

14   2008) (upholding BIA’s requirement that applicant demonstrate

15   that officials in his local area enforce a government policy

16   when evidence demonstrates local variations in enforcement of

17   that policy).

18        Because Yu failed to meet his burden of proof for asylum,

19   he   necessarily   failed       to   meet   the   higher    burdens    for

20   withholding of removal and CAT relief.            Lecaj v. Holder, 616

21   F.3d 111, 119-20 (2d Cir. 2010).              We do not address the
                                          5
1    timeliness of the asylum application or the agency’s firm

2    resettlement finding because the burden determination is

3    dispositive.   See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)

4    (“As a general rule courts and agencies are not required to

5    make findings on issues the decision of which is unnecessary

6    to the results they reach.”).

7        Finally,   we   reject   Yu’s   due    process   argument.      Yu

8    contends that the IJ deprived him of due process by stating

9    the following immediately before issuing his oral decision:

10   “I feel that if I actually were to stretch things and grant

11   relief, I think that the Department would have grounds for

12   appeal and that they’d succeed. So in, other words, it

13   wouldn’t do any good to try to push it any other way.”           Taken

14   in context, however, it is clear that the IJ’s remarks were

15   intended to explain his decision to deny relief because Yu

16   had not met his evidentiary burden.          For instance, the IJ

17   also stated, “I don’t think Mr. Yu’s case, the evidence

18   presented meets his burden to demonstrate eligibility for

19   asylum under our country’s laws.          And for that reason I do

20   feel that the application needs to be denied.”           The IJ did


                                     6
1    not consider any improper factors or deny Yu a full and fair

2    hearing.

3        For the foregoing reasons, the petition for review is

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

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

6    request for oral argument in this petition is DENIED in

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

8    and Second Circuit Local Rule 34.1(b).

 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe,
11                               Clerk of Court




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