         10-2498-ag
         Yang v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A078 746 807
                               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 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 22ND day of June, two thousand eleven.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                REENA RAGGI,
 9                RICHARD C. WESLEY,
10                    Circuit Judges.
11       _______________________________________
12
13       YOU HAO YANG,
14                Petitioner,
15
16                        v.                                    10-2498-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney
26                                      General; Jennifer Levings, Senior
27                                      Litigation Counsel; Tim Ramnitz,
28                                      Attorney, Office of Immigration
29                                      Litigation, Civil Division, United
30                                      States Department of Justice,
31                                      Washington, D.C.
 1        UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review is DENIED.

 5        Petitioner You Hao Yang, a native and citizen of the

 6   People’s Republic of China, seeks review of a June 1, 2010

 7   order of the BIA affirming the June 27, 2008 decision of

 8   Immigration Judge (“IJ”) Steven R. Abrams, denying Yang’s

 9   application for asylum, withholding of removal, and relief

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

11   Yang, No. A078 746 807 (B.I.A. June 1, 2010), aff’g No. A078

12   746 807 (Immigr. Ct. N.Y. City June 27, 2008).     We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history of the case.

15        Under the circumstances of this case, we review only

16   the BIA’s decision.     See Yan Chen v. Gonzales, 417 F.3d 268,

17   271 (2d Cir. 2005).     The applicable standards of review are

18   well-established.     See 8 U.S.C. § 1252(b)(4)(B) (2006);

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

20   I.   Past Persecution

21        The BIA reasonably concluded that Yang failed to

22   establish his eligibility for relief.     Although Yang asserts

23   that the BIA erroneously concluded that the harm that his

                                     2
 1   mother suffered did not rise to the level of persecution,

 2   Yang has not alleged that he was harmed or threatened as a

 3   result of his Christian religion.   To the extent Yang argues

 4   that he suffered past persecution based on the harm his

 5   mother suffered, “an asylum applicant cannot claim past

 6   persecution based solely on harm that was inflicted on a

 7   family member on account of that family member’s political

 8   opinion or other protected characteristic.”   Tao Jiang v.

 9   Gonzales, 500 F.3d 137, 141 (2d Cir. 2007); see also Melgar

10   de Torres v. Reno, 191 F.3d 307, 313 n.2 (2d Cir. 1999).

11   Although in rare cases it may be possible to establish

12   asylum eligibility based on harm that an applicant suffered

13   only indirectly or that was directed at an applicant’s

14   relatives, see, e.g., Jorge-Tzoc v. Gonzales, 435 F.3d 150

15   (2d Cir. 2007) (per curiam) (holding that the asylum

16   applicant may have experienced persecution even though he

17   was not present at, or directly victimized by, a massacre in

18   his village based on a combination of factors, including

19   suffering extensive physical and emotional consequences as a

20   result of the incident), Yang has not claimed to have

21   suffered any consequences from his mother’s alleged

22   persecution.

23   II. Well-Founded Fear of Future Persecution

                                  3
 1       The BIA reasonably concluded that Yang failed to

 2   demonstrate an objectively reasonable fear of future

 3   persecution based on his Christian religion.    See

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

 5   (holding that absent past persecution, an applicant can

 6   demonstrate eligibility for asylum based on a well-founded

 7   fear of future persecution by demonstrating that he

 8   subjectively fears persecution and that this fear is

 9   objectively reasonable).    The BIA did not err in considering

10   that Yang did not claim that others from his church in China

11   were persecuted.   See Matter of Acosta, 19 I. & N. Dec. 211,

12   222 (B.I.A. 1985) (holding that the BIA has defined

13   persecution as a “threat to the life or freedom of, or the

14   infliction of suffering or harm upon, those who differ in a

15   way regarded as offensive”), overruled, in part, on other

16   grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); see

17   also Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332,

18   340–41 (2d Cir. 2006) (holding that to constitute

19   persecution, the harm must be sufficiently severe, rising

20   above “mere harassment”).   As Yang does not point to

21   anything in the record to support his claim that he and his

22   fellow church members were unable to practice their

23   religion, despite the officials having destroyed the church

                                    4
 1   that they were in the process of building, or that his

 2   fellow church members suffered any other harm, the BIA’s

 3   finding was reasonable.

 4       Additionally, there is no merit to Yang’s contention

 5   that the BIA failed either to consider all of the evidence

 6   or sufficiently explain why it did not credit his testimony

 7   that Chinese authorities were aware that he was Christian or

 8   involved in building an underground church and that he would

 9   evangelize if he returned to China.   See Jian Hui Shao v.

10   Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (holding that the

11   agency is not required to “expressly parse or refute on the

12   record each individual argument or piece of evidence offered

13   by the petitioner” (internal quotation marks omitted)); see

14   also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

15   336 n.17 (2d Cir. 2006) (presuming that the agency “has

16   taken into account all of the evidence before [it], unless

17   the record compellingly suggests otherwise”).   Although Yang

18   argues that the BIA did not review the State Department

19   Reports in their entirety, the BIA specifically acknowledged

20   that the reports indicate restraints on the practice of

21   religion in China, but the BIA noted that the reports also

22   provide that the authorities often ignore small house

23   churches, such as the one to which Yang belonged.   Yang

                                  5
 1   cites a portion of the 2007 International Religious Freedom

 2   Report, which he claims the BIA ignored and which indicates

 3   that local officials interfered with house church meetings.

 4   However, the report also indicates that “[t]reatment of

 5   unregistered groups varied regionally,” that only some

 6   groups were harassed, and that it was primarily church

 7   leaders who were subject to harsher treatment.   Moreover,

 8   the report does not include any information regarding house

 9   churches in Yang’s province of Fujian.

10       With regard to the BIA’s finding that there was a lack

11   of evidence that Yang was known to the police, Yang stated

12   only that he believed that Chinese authorities were aware of

13   his past Christian activities, and he did not, and does not

14   now, point to any evidence in support of that claim.

15   Moreover, Yang testified that he would not be arrested

16   immediately if he were sent back to China because he was not

17   a fugitive.   The BIA also reasonably concluded that there

18   was no reason to believe that Yang would evangelize if he

19   returned to China because the record shows that Yang did not

20   preach or evangelize in the United States, and he did not

21   regularly evangelize while he was in China.   See Jian Xing

22   Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per curiam)

23   (holding that, absent solid support in the record for the


                                   6
 1   petitioner’s assertion that he would be subjected to

 2   persecution, his fear was “speculative at best”).   Because

 3   the BIA reasonably concluded that there was no basis to

 4   conclude that he would evangelize, Yang’s reliance on any

 5   harm suffered by his mother for her evangelical activities

 6   is not evidence that he has an objectively reasonable fear

 7   of persecution.

 8       Lastly, the BIA did not apply an erroneously high

 9   standard of proof by requiring Yang to demonstrate that the

10   Chinese authorities were aware that he was Christian.     Yang

11   mischaracterizes the BIA’s decision.   The BIA found not only

12   that there was no evidence that Chinese authorities were

13   aware of who he was but also that there was no evidence that

14   Chinese authorities would become aware of his activities

15   when he returned to China because there was no reason to

16   believe that he would evangelize in China, fellow members of

17   his church in China had not been persecuted, and his mother

18   had not been arrested again.   Since the BIA did not apply an

19   improper standard of proof to Yang’s claim of a well-founded

20   fear of persecution based on his Christian beliefs, Yang

21   fails to establish that the BIA erred in concluding that he

22   did not meet his burden of establishing that he had an

23   objectively reasonable fear of persecution.   See


                                    7
 1   Ramsameachire, 357 F.3d at 178.

 2       Accordingly, as Yang is unable to establish the

 3   objective likelihood of persecution needed to make out an

 4   asylum claim based on his Christian beliefs, he is

 5   necessarily unable to meet the higher standard required to

 6   succeed on his claims for withholding of removal and CAT

 7   relief, as all three claims rest on the same factual

 8   predicate.    See Paul v. Gonzales, 444 F.3d 148, 155–56 (2d

 9   Cir. 2006).

10       For the foregoing reasons, the petition for review is

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

12   removal that the Court previously granted in this petition

13   is VACATED, and any pending motion for a stay of removal in

14   this petition is DISMISSED as moot. Any pending request for

15   oral argument in this petition is DENIED in accordance with

16   Federal Rule of Appellate Procedure 34(a)(2), and Second

17   Circuit Local Rule 34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk
20
21
22




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