    18-1729
    Fu v. Barr
                                                                                  BIA
                                                                             Sponzo, IJ
                                                                          A202 024 313

                      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.

          At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    16th day of December, two thousand nineteen.

    PRESENT:
              DENNIS JACOBS,
              SUSAN L. CARNEY,
              MICHAEL H. PARK,
                   Circuit Judges.
    _____________________________________

    TIANQI FU,

                 Petitioner,

                 v.                                              No. 18-1729

    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,

              Respondent.
    _____________________________________

    FOR PETITIONER:                   GARY J. YERMAN, Esq., New York, NY.

    FOR RESPONDENT:                   BRENDAN P. HOGAN, Attorney (Joseph H.
                                      Hunt, Assistant Attorney General;
                                      Song Park, Senior Litigation
                                      Counsel, on the brief) for Office of
                                      Immigration Litigation, United
                                      States Department of Justice, Civil
                                      Division, Washington, DC.
        UPON DUE CONSIDERATION of this petition for review of a Board

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

ADJUDGED, AND DECREED that the petition for review is DENIED.

        Petitioner Tianqi Fu, a native and citizen of the People’s

Republic of China, seeks review of a decision of the BIA affirming

a decision of an Immigration Judge (“IJ”) denying his application

for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). In re Tianqi Fu, No. A202 024

313 (B.I.A. May 18, 2018), aff’g No. A202 024 313 (Immig. Ct. N.Y.

City Jun. 27, 2017). We assume the parties’ familiarity with the

underlying facts and procedural history in this case, to which we

refer    only   as   required        to    explain     our    decision    to    deny    the

petition.

        We have considered both the IJ’s and the BIA’s decisions “for

the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec.,

448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of

review are well established. See 8 U.S.C. § 1252(b)(4)(B); see

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

conclude      that    substantial              evidence     supports     the        agency’s

determination that Fu failed to establish a well-founded fear of

future persecution.

        Fu   makes    no     claim        of    past      persecution.     Absent       past

persecution, an applicant may establish eligibility for asylum by

demonstrating        “that    he     has       a    well-founded    fear       of    future
                                                2
persecution,       which     requires      that   the       alien    present         credible

testimony that he subjectively fears persecution and establish

that    his     fear    is    objectively       reasonable.”         Ramsameachire           v.

Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); see also 8 C.F.R.

§ 1208.13(b)(2).        To    demonstrate       such    a    well-founded            fear,   an

applicant must show either a reasonable possibility that he “would

be singled out individually for persecution” or that the country

of removal has a “pattern or practice” of persecuting individuals

“similarly situated” to him. 8 C.F.R. § 1208.13(b)(2)(iii). Where,

as    here,   an    applicant       expresses     a    fear    based       on   activities

undertaken solely in the United States, he “must make some showing

that authorities in his country of nationality are either aware of

his activities or likely to become aware of his activities.”

Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). In

the    asylum      context,       this   requires      an     applicant         to    show    a

“reasonable possibility” that the government will become aware of

the    activity.       Id.   Absent      “solid   support”          in    the    record,     a

petitioner’s       fear      of   future    persecution        is        properly      deemed

“speculative at best.” Jian Xing Huang v. U.S. I.N.S., 421 F.3d

125, 129 (2d Cir. 2005).

       The agency did not err in finding that Fu failed to establish

a well-founded fear of future persecution. Fu did not demonstrate

that Chinese officials are aware, or are likely to become aware,

of his religious practice should he be removed to China. Fu did
                                            3
not assert that Chinese officials are aware of his religious

activities in the United States. Rather, he alleged that Chinese

officials knew of his father’s membership in a family church and,

in 2009, had detained and tortured Fu’s father for that reason.

     Further, Fu failed to demonstrate that Chinese officials are

likely to discover Fu’s own religious practice. First, his limited

church   attendance       in   the    United    States    made   his    assertions

regarding    any    possible         future    church     attendance     in    China

speculative. Fu admitted at his 2017 hearing that, since becoming

interested in Christianity after arriving in the United States in

2013, he has attended church infrequently. He acknowledged that he

therefore was as yet ineligible for baptism. In addition to

conceding that his church attendance has been infrequent, Fu

further acknowledged that, since he left China in 2013, the police

had not visited or threatened his mother on account of his father’s

past practice, decreasing the likelihood that the police would

discover    Fu’s   own    religious     practice    through      any    threatening

visits. In addition, although Fu testified that he planned to

continue attending his current U.S. church, that he did not want

to abandon his faith if removed to China, and that in China, true

believers    attend      underground     churches       (as   opposed    to   state-

sanctioned churches), he never stated directly that he would

regularly attend an underground church in China if removed.



                                          4
        Accordingly, we think it speculative to conclude that, if

removed, Fu would attend an underground church in China and be

persecuted as a result. Moreover, his testimony that authorities

had not approached his mother in recent years and the record

evidence showing that tens of millions of people in China are

practicing Christians undermined his claim that authorities would

learn     of    his   individual    activities   and    persecute   him,   in

particular. See Hongsheng Leng, 528 F.3d at 143; see also Jian

Xing Huang, 421 F.3d at 129.

        Fu also contends that China has a pattern or practice of

persecuting individuals who are similarly situated to him, and

that this is enough to establish an objective basis for fearing

future persecution. Although Fu did not specifically present this

argument to the agency, we treat it as exhausted because the BIA

addressed (and rejected) it, concluding that it could discern no

pattern    or    practice   of     persecution   of    infrequent   religious

practitioners such as Fu. See Ruiz-Martinez v. Mukasey, 516 F.3d

102, 112 n.7 (2d Cir. 2008). The agency reasonably found in

addition that the documentary record evidence adduced in this case

does not support a finding that, in China, there is a “systemic or

pervasive” persecution of similarly situated Christians sufficient

to demonstrate a cognizable pattern and practice of persecution.

In re A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005) (describing a

pattern or practice of persecution as the “systemic or pervasive”
                                       5
persecution of a group); see also 8 C.F.R. § 1208.13(b)(2)(iii)

(setting forth requirements for establishing asylum eligibility);

Santoso   v.   Holder,     580    F.3d      110,   112    &    n.1     (2d    Cir.   2009)

(rejecting     pattern    or     practice       claim    on    basis    of    background

materials describing religious persecution as localized rather

than countrywide in Indonesia, “a nation state consisting of

approximately     6000    inhabited         islands”).        The   articles     that   Fu

submitted to the agency reflect that China’s population includes

approximately     70     million       Christians        attending       official       and

unofficial     churches.       Much    of    the   background        record     evidence

suggests that Chinese authorities target primarily the leadership

of   particular   churches       and     not    general       members    of    Christian

congregations.

      Additionally, the record shows that the Chinese government’s

treatment of members of underground churches varies by region.

Although in 2009, the police in Fu’s home province of Jilin

targeted Fu’s father, the record contains no documentary evidence

regarding the police’s treatment of underground church members

there, either before or after 2009. In view of the absence of

record evidence suggesting pervasive persecution of even regular

practitioners in his home region, Fu did not establish a relevant

pattern or practice of persecution of individuals who attend church

only sporadically. See Jian Hui Shao v. Mukasey, 546 F.3d 138,

165–66, 174 (2d Cir. 2008) (finding no error in BIA’s requiring
                                            6
localized evidence of persecution in China when record reflected

wide variances in population control policies and practices around

the country).

        We decline Fu’s request to consider the 2017 U.S. State

Department Religious Freedom Report, because it was not in the

record before the agency. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he

court     of    appeals     shall    decide          the   petition    only    on     the

administrative record on which the order of removal is based.”).

Even were we to consider it, however, it would not cause us to

alter our conclusion because it contains no reference to the

treatment       of    underground    Christian         church   members       in    Jilin

Province. See Mukasey, 546 F.3d at 165-66.

        In sum, given the lack of evidence of Fu’s regular practice

of Christianity in the United States, and of proof that any such

practice       by    him   would   occur,       be    discovered,     and   result     in

persecution upon his return to China, we identify no error in the

agency’s conclusion that Fu failed to demonstrate the objectively

reasonable fear of future harm required to sustain an asylum claim.

Fu’s failure to carry this burden for his asylum claim necessarily

means that he is unable to show the higher likelihood of harm that

is required to sustain a claim for withholding and CAT. See Lecaj

v. Holder, 616 F.3d 111, 119 (2d Cir. 2010).




                                            7
     For the foregoing reasons, the petition for review is DENIED

and the previously granted stay is VACATED.



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




                               8
