     16-18
     Ren v. Sessions
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A205 230 421

                            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   10th day of July, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DEBRA ANN LIVINGSTON,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHONGMIN REN,
14            Petitioner,
15
16                     v.                                            16-18
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                       Joan Xie, New York, N.Y.
24
25   FOR RESPONDENT:                       Benjamin C. Mizer, Principal
26                                         Deputy Assistant Attorney

      Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Jefferson B. Sessions, III, is automatically substituted for
     former Attorney General Loretta E. Lynch as Respondent.
1                                    General; Mary Jane Candaux,
2                                    Assistant Director; Jeremy M.
3                                    Bylund, Trial Attorney, Office
4                                    of Immigration Litigation, United
5                                    States Department of Justice,
6                                    Washington, D.C.
7
8          UPON DUE CONSIDERATION of this petition for review of a

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

10   ORDERED, ADJUDGED, AND DECREED that the petition for review is

11   DENIED.

12         Petitioner Zhongmin Ren, a native and citizen of China,

13   seeks review of a December 15, 2015 decision of the BIA affirming

14   an April 16, 2014 decision of an Immigration Judge (“IJ”)

15   denying Ren’s application for asylum, withholding of removal,

16   and relief under the Convention Against Torture (“CAT”).          In

17   re Zhongmin Ren, No. A205 230 421 (B.I.A. Dec. 15, 2015), aff’g

18   No. A205 230 421 (Immig. Ct. N.Y.C. Apr. 16, 2014).       We assume

19   the   parties’   familiarity   with   the   underlying   facts   and

20   procedural history in this case.

21         Under the circumstances of this case, we review the IJ’s

22   decision as modified by the BIA (i.e., minus the IJ’s finding

23   that Ren’s testimony concerning when he received his wife’s

24   letter was not credible).      See Xue Hong Yang v. U.S. Dep’t of

25   Justice, 426 F.3d 520, 522 (2d Cir. 2005).       The “substantial

26   evidence” standard of review applies to the IJ’s factual

                                      2
1    findings, and we review questions of law de novo. See 8 U.S.C.

2    § 1252(b)(4); Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

3    For the following reasons, we conclude that the agency did not

4    err in determining that Ren failed to establish a well-founded

5    fear of persecution based on his membership in the China

6    Democracy Party (“CDP”) in New York and pro-democracy activity

7    in the United States.

8        Absent   past   persecution,    an   alien   may   establish

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

10   future persecution, which is a “subjective fear that is

11   objectively reasonable.”   Dong Zhong Zheng v. Mukasey, 552 F.3d

12   277, 284 (2d Cir. 2009) (internal quotation marks omitted); see

13   8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b)(2).      To show a

14   well-founded fear of future persecution, an asylum applicant

15   may (1) “demonstrat[e] that he or she would be singled out

16   individually for persecution if returned,” or (2) show that his

17   or her country of nationality has a “pattern or practice . . .

18   of persecution of a group of persons similarly situated to the

19   applicant and establish[] his or her own inclusion in, and

20   identification, with such group.”    Y.C. v. Holder, 741 F.3d

21   324, 332 (2d Cir. 2013) (internal quotation marks omitted); see

22   8 C.F.R. § 1208.13(b)(2)(iii)).


                                    3
1          The agency did not err in concluding that Ren failed to show

2    a    reasonable    possibility   that      he    would    be   singled   out

3    individually for persecution.        See Jian Xing Huang v. INS, 421

4    F.3d 125, 129 (2d Cir. 2005) (noting that “[i]n the absence of

5    solid support in the record” a fear of persecution is not

6    objectively       reasonable   and   is     “speculative       at    best”).

7    “Importantly, to establish a well-founded fear of persecution

8    in the absence of any evidence of past persecution, an alien

9    must make some showing that authorities in his [or her] country

10   of nationality are either aware of his [or her] activities or

11   likely to become aware of his [or her] activities.”                 Y.C., 741

12   F.3d at 332 (internal quotation marks omitted).                Although Ren

13   submitted a letter from his wife stating that she had been

14   visited by police who were aware of Ren’s pro-democracy

15   activities in the United States, the agency reasonably declined

16   to credit this letter because it was unsworn and submitted by

17   an     interested      witness       who        was      unavailable     for

18   cross-examination.      See Xiao Ji Chen v. U.S. Dep’t of Justice,

19   471 F.3d 315, 342 (2d Cir. 2006) (holding that the weight

20   accorded to an applicant’s evidence “lie[s] largely within the

21   discretion of the IJ” (internal quotation marks omitted));

22   Y.C., 741 F.3d at 334 (affirming agency’s determination that


                                          4
1    letter from applicant’s relative in China was entitled to

2    limited weight because it was unsworn and submitted by an

3    interested witness).     And while Ren testified that his wife had

4    told him that she later saw three or four “suspicious people”

5    near their home in China, the agency did not err in finding this

6    testimony insufficient to demonstrate the Chinese government’s

7    awareness of Ren’s pro-democracy activities absent further

8    corroboration.     See    8   U.S.C.   § 1158(b)(1)(B)(ii)   (“The

9    testimony of the applicant may be sufficient to sustain the

10   applicant’s burden without corroboration, but only if the

11   applicant satisfies the trier of fact that the applicant’s

12   testimony is credible, is persuasive, and refers to specific

13   facts sufficient to demonstrate that the applicant is a

14   refugee.”); Chuilu Liu v. Holder, 575 F.3d 193, 196-97 (2d Cir.

15   2009).

16       Apart from his wife’s letter, the only evidence that Ren

17   provided to demonstrate the Chinese authorities’ allegedly

18   likely awareness of his U.S. political activity was photographs

19   of protest demonstrations he attended in New York and four

20   articles criticizing the Chinese government that he had posted

21   online.   The agency considered this evidence and reasonably

22   concluded that Ren’s claim was speculative: to find that Ren


                                      5
1    would face a likely threat of persecution in China, the agency

2    would have had to assume that Chinese authorities had read Ren’s

3    articles, identified Ren as the author, and had received reports

4    of his protest activity in the United States.                     See Y.C., 741

5    F.3d    at    344    (agreeing    that       petitioner    had    not    shown   a

6    well-founded fear of future persecution based on participation

7    in     anti-Communist      candlelight         vigils     in     the    U.S.   and

8    publication of a pro-democracy article online because there was

9    no evidence that the Chinese government was aware of such

10   activity).      There was no support for any such inference.

11          The agency also did not err in concluding that Ren failed

12   to establish a pattern or practice of persecution of ordinary

13   members of the CDP in China.        To establish a pattern or practice

14   of persecution against a particular group, an applicant must

15   demonstrate that the harm to that group is “systemic or

16   pervasive.”         In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005);

17   cf. Mufied v. Mukasey, 508 F.3d 88, 92-93 (2d Cir. 2007)

18   (accepting the BIA’s standard as “a reasonable one,” while

19   noting that “[w]ithout further elaboration [the standard does

20   not    make    clear]     how    systemic,       pervasive,       or    organized

21   persecution must be before the Board would recognize it as a

22   pattern or practice”).           Here, the agency correctly observed


                                              6
1    that Ren presented evidence of only one CDP member, a leader

2    of the party, who was arrested in China, and Ren testified that

3    he himself did not have a leadership role and was only an

4    ordinary   member.    The   agency   therefore   did   not   err   in

5    concluding that Ren failed to show evidence of a pattern or

6    practice of persecution of similarly-situated individuals.

7    See Y.C., 741 F.3d at 334-35 (affirming agency’s denial of

8    pattern or practice claim by low-level member of Chinese

9    pro-democracy party where only evidence was of persecution of

10   party founder).

11       Accordingly, because the agency reasonably found that Ren

12   failed to demonstrate a well-founded fear of persecution, it

13   did not err in denying asylum or in concluding that he

14   necessarily failed to meet the higher burden required for

15   withholding of removal or CAT relief.      Id. at 335.

16       For the foregoing reasons, the petition for review is

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

18   that the Court previously granted in this petition is VACATED,

19   and any pending motion for a stay of removal in this petition

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

21   in this petition is DENIED in accordance with Federal Rule of




                                     7
1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk




                                 8
