     14-957 (L)
     Zhu v. Lynch
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A200 743 359

                         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 August, two thousand sixteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            JOSÉ A. CABRANES,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   YINGJIN ZHU,
14            Petitioner,
15
16                  v.                                               14-957(L),
17                                                                   14-4094(Con)
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Jan Potemkin, New York,
25                                       New York.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General;
29                                       Michelle G. Latour, Deputy Director;
30                                       Victor M. Lawrence, Senior
1                                  Litigation Counsel, Office of
2                                  Immigration Litigation, United
3                                  States Department of Justice,
4                                  Washington, D.C.
5
6           UPON DUE CONSIDERATION of these petitions for review of two

7    Board of Immigration Appeals (“BIA”) decision, it is hereby

8    ORDERED, ADJUDGED, AND DECREED that the petitions for review

9    are DENIED.

10          Petitioner Yingjin Zhu, a native and citizen of the

11   People’s Republic of China, seeks review of (1) a February 28,

12   2014, decision of the BIA that affirmed an April 5, 2012,

13   decision    of   an   Immigration   Judge   (“IJ”)   denying   asylum,

14   withholding of removal, relief under the Convention Against

15   Torture (“CAT”), and denied her motion to remand in the first

16   instance, In re Yingjin Zhu, No. A200 743 359 (B.I.A. Feb. 28,

17   2014), aff’g No. A200 743 359 (Immig. Ct. N.Y. City Apr. 5,

18   2012), and (2) an October 9, 2014, decision of the BIA denying

19   her motion to reopen.       In re Yingjin Zhu, No. A200 743 359

20   (B.I.A. Oct. 9, 2014).     We assume the parties’ familiarity with

21   the underlying facts and procedural history in this case.

22     I.     Docket 14-957 (L), Order of Removal and Motion to Remand

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

24   decision of the IJ as supplemented by the BIA.          See Yan Chen

25   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).        The applicable
                                    2
1    standards of review are well established.                      See 8 U.S.C.

2    § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510,

3    513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep’t of Justice, 421

4    F.3d 149, 156 (2d Cir. 2005).

5        A.     Asylum, Withholding of Removal, and CAT Relief

6        An     alien    may   establish       eligibility    for    asylum    and

7    withholding of removal based on past persecution alone.                   See

8    8 C.F.R.    §§ 1208.13(b),       1208.16(b)(1).           A     valid    past

9    persecution claim can be based on harm other than threats to

10   life or freedom, including non-life-threatening violence and

11   physical abuse, Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d

12   Cir. 2006), but the harm must be sufficiently severe, rising

13   above “mere harassment,” Ivanishvili v. U.S. Dep’t of Justice,

14   433 F.3d 332, 341 (2d Cir. 2006).

15       The    agency    reasonably    concluded      that    Zhu    failed    to

16   establish that she suffered past persecution based on Chinese

17   officials’ suspicion that she supported the return of the

18   Yanbian Korean Autonomous Prefecture to Korea.                  She did not

19   suffer any harm during her brief detention.              See Jian Qiu Liu

20   v. Holder, 632 F.3d 820, 822 (2d Cir. 2011).              And she did not

21   allege any severe economic disadvantage as a result of being

22   demoted    and   required   to   report      certain    of     her   business

                                           3
1    interactions.     See Huo Qiang Chen v. Holder, 773 F.3d 396, 405

2    (2d Cir. 2014).

3         Absent     past   persecution,   an   alien   may   establish

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

5    future persecution.     8 C.F.R. § 1208.13(b)(2).     To establish

6    a well-founded fear of persecution, an applicant must show that

7    she subjectively fears persecution and that her fear is

8    objectively reasonable.      Ramsameachire v. Ashcroft, 357 F.3d

9    169, 178 (2d Cir. 2004).

10        Contrary to Zhu’s contention, the agency did not apply an

11   overly stringent burden of proof when it noted that she had not

12   demonstrated that the Chinese government maintained an interest

13   in monitoring or harming her.    See Guan Shan Liao v. U.S. Dep’t

14   of Justice, 293 F.3d 61, 68-69 (2d Cir. 2002).     Indeed, her fear

15   of future persecution was not objectively reasonable given her

16   admission that she had no evidence that the Chinese government

17   continues to be interested in her or is looking for her for any

18   political reason.      See Jian Xing Huang v. INS, 421 F.3d 125,

19   129 (2d Cir. 2005) (“In the absence of solid support in the record

20   . . . , [an applicant’s] fear is speculative at best”).

21        Zhu’s failure to demonstrate a well-founded fear of

22   persecution is dispositive of asylum, withholding of removal,

                                      4
1    and CAT relief because all three claims are based on the same

2    factual predicate.         See Paul v. Gonzales, 444 F.3d 148, 156-57

3    (2d Cir. 2006).

4          B.   Motion to Remand

5          To obtain remand based on an ineffective assistance claim,

6    an alien must substantially comply with certain procedures laid

7    out in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988).            See

8    Jian Yun Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 46-47 (2d

9    Cir. 2005).      Specifically, the alien must submit an affidavit

10   that details her agreement with former counsel, proof that she

11   notified counsel of her allegations, and information regarding

12   whether a complaint has been filed with the appropriate

13   disciplinary authority or an explanation for failing to do so.

14   See Lozada, 19 I. & N. Dec. at 639.                   Failure to comply

15   substantially       with    the     Lozada     requirements    constitutes

16   forfeiture of an ineffective assistance claim.                See Jian Yun

17   Zheng, 409 F.3d at 46-47.

18         As the BIA found, Zhu failed to substantially comply with

19   the Lozada requirements because she did not submit an affidavit

20   detailing her agreement with her former attorneys, and she did

21   not   file   a    complaint       with   the   appropriate    disciplinary

22   authority.       Although Zhu challenges the BIA’s finding in her

                                              5
1    opening brief, she admitted in a later motion before the BIA

2    that    her   motion   to     remand   did   not   comply   with   Lozada.

3    Accordingly, the BIA did not err in rejecting Zhu’s ineffective

4    assistance claim as a basis for remand.              See Jian Yun Zheng,

5    409 F.3d at 46-47.

6      II. Docket 14-4094 (Con), Motion to Reopen

7           We review the denial of a motion to reopen for abuse of

8    discretion, and review the BIA’s fact-finding regarding country

9    conditions for substantial evidence.               See Jian Hui Shao v.

10   Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).                In order to

11   prevail on a claim of ineffective assistance of counsel, a

12   movant must show that competent counsel would have acted

13   otherwise,     and     that    she     was   prejudiced     by   counsel’s

14   performance.     Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir. 1994);

15   Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993).                      To

16   demonstrate prejudice, or otherwise succeed on a motion to

17   reopen, a movant must establish a prima facie case for the

18   underlying substantive relief sought.              See Rabiu, 41 F.3d at

19   882-83; see also INS v. Abudu, 485 U.S. 94, 104 (1988).

20          The BIA did not err in finding that Zhu failed to

21   demonstrate her prima facie eligibility for asylum on account

22   of her Christian faith.              The BIA explicitly acknowledged

                                            6
 1   reports of religious suppression and police harassment of

 2   unregistered religious groups in China.              Nevertheless, it

 3   reasonably noted country conditions evidence that the Chinese

 4   government permits family and friends to meet in private for

 5   worship and bible study, and that unregistered church members

 6   have noticed increased freedom to conduct religious services.

 7   The country conditions evidence further states that around 70

 8   million Christians practice in unregistered churches in China,

 9   and that authorities in some areas of the country do not

10   interfere with their activities.

11          Moreover, the BIA acknowledged Zhu’s assertion that her

12   friends in China, to whom she had proselytized, were detained

13   and beaten for unregistered church activities in April 2012.

14   The BIA did not err in finding that the vague description Zhu

15   and    her   friend     provided      regarding   this     incident     was

16   insufficient to demonstrate a realistic chance that Zhu would

17   face persecution if she were to practice in an unregistered

18   church upon return to China.          See Jian Hui Shao, 546 F.3d at

19   172.

20          Because    Zhu   failed   to    demonstrate   her    prima     facie

21   eligibility for relief, the BIA did not err in denying her motion

22   to reopen.       See Rabiu, 41 F.3d at 882-83; Abudu, 485 U.S. at

                                           7
1    104.    Accordingly, we do not consider the BIA’s alternative

2    finding that Zhu failed to satisfy the Lozada requirements in

3    her second motion.     See INS v. Bagamasbad, 429 U.S. 24, 25

4    (1976) (“As a general rule courts and agencies are not required

5    to make findings on issues the decision of which is unnecessary

6    to the results they reach.”).

7           For the foregoing reasons, the petitions for review are

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

9    that the Court previously granted in these petitions is VACATED,

10   and any pending motion for a stay of removal in these petitions

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

12   is DENIED in accordance with Federal Rule of Appellate Procedure

13   34(a)(2), and Second Circuit Local Rule 34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O=Hagan Wolfe, Clerk




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