     18-781
     Piao v. Barr
                                                                                  BIA
                                                                             Nelson, IJ
                                                                          A201 132 574
                         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 18th day of August, two thousand twenty.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            DENNIS JACOBS,
 9            JOSEPH F. BIANCO,
10                 Circuit Judges.
11   _____________________________________
12
13   MINGJI PIAO,
14            Petitioner,
15
16                  v.                                           18-781
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Dehai Zhang, Esq., Flushing, NY.
24
25   FOR RESPONDENT:                  Ethan P. Davis, Acting Assistant
26                                    Attorney General; Russell J. E.
27                                    Verby, Senior Litigation Counsel;
28                                    John D. Williams, Trial Attorney,
29                                    Office of Immigration Litigation,
30                                    United States Department of
31                                    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 DISMISSED in part and DENIED in part.

 5       Petitioner Mingji Piao, a native and citizen of the

 6   People’s Republic of China, seeks review of a March 8, 2018

 7   decision of the BIA affirming a May 18, 2017 decision of an

 8   Immigration Judge (“IJ”) denying Piao asylum, withholding of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).   In re Mingji Piao, No. A201 132 574 (B.I.A. Mar.

11   8, 2018), aff’g No. A201 132 574 (Immig. Ct. N.Y.C. May 18,

12   2017).     We   assume    the   parties’     familiarity     with   the

13   underlying facts and procedural history.

14       We have reviewed both the IJ’s and the BIA’s opinions

15   “for the sake of completeness.”              Wangchuck v. Dep’t of

16   Homeland   Sec.,   448   F.3d   524,   528   (2d   Cir.   2006).    The

17   applicable standards of review are well established.                See

18   8 U.S.C. § 1252(b)(4)(B); Wei Sun v. Sessions, 883 F.3d 23,

19   27 (2d Cir. 2018).

20     A. Asylum

21       We lack jurisdiction to review the agency’s pretermission

22   of Piao’s asylum application as untimely for being filed more

23   than one year after her arrival in the United States.               See
                                       2
 1   8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).         The record belies

 2   Piao’s contention that the agency failed to consider all the

 3   reasons she proffered to excuse her untimely filing.

 4     B. Withholding of Removal and CAT Relief

 5          1. Family Planning Claim

 6          The agency did not err in denying withholding of removal

 7   based on Piao’s failure to adequately corroborate her claim

 8   that     Chinese   family   planning   officials   forced   her    to

 9   terminate two pregnancies in the 1980s by threat of onerous

10   fines.    The Immigration and Nationality Act (“INA”) provides

11   that “a person who has been forced to abort a pregnancy . .

12   . shall be deemed to have been persecuted on account of

13   political opinion.”     8 U.S.C. § 1101(a)(42)(B); see also Xiu

14   Fen Xia v. Mukasey, 510 F.3d 162, 165 (2d Cir. 2007).             “An

15   abortion is not ‘forced’ . . . unless the threatened harm for

16   refusal would, if carried out, be sufficiently severe that it

17   amounts to persecution.”       In re T-Z-, 24 I. & N. Dec. 163,

18   169 (B.I.A. 2007).     In order for economic harm to constitute

19   persecution, the harm must be “severe,” such that it would

20   “constitute a threat to an individual’s life or freedom,” but

21   an applicant “need not demonstrate a total deprivation of

22   livelihood or a total withdrawal of all economic opportunity

23   in order to demonstrate harm amounting to persecution.”           In
                                       3
 1   re T-Z-, 24 I. & N. Dec. at 170, 173.                  “[A]n asylum applicant

 2   must offer some proof” “regarding . . . income . . ., h[er]

 3   net worth . . . , or any other facts that would make it

 4   possible    .     .    .    to    evaluate       h[er]      personal       financial

 5   circumstances in relation to the” government’s imposition of

 6   an economic disadvantage.                Guan Shan Liao v. U.S. Dep’t of

 7   Justice, 293 F.3d 61, 70 (2d Cir. 2002); see also Wei Sun,

 8   883 F.3d at 28.

 9          Piao did not submit any financial information from the

10   relevant time period in the form of affidavits, testimony,

11   bank records, or evidence regarding how such fines were

12   collected    (i.e.,        in    one     lump    sum   or    in    installments).

13   Further, although she submitted a statement from her husband,

14   that statement did not mention that she faced onerous fines

15   that left her without any option other than to terminate her

16   pregnancies; rather, it stated only that family planning

17   officials did not grant them permission to have a second child

18   so Piao terminated her second and third pregnancies.                         On this

19   record, the agency did not err in finding that Piao failed to

20   establish that her abortions were forced so as to constitute

21   past     persecution            under      the     INA.            See      8 U.S.C.

22   § 1101(a)(42)(B); see also Xiu Fen Xia, 510 F.3d at 165.

23          Contrary       to   Piao’s       contention,      the      agency    was   not
                                                4
 1   required to find that she satisfied her burden of proof simply

 2   because her testimony was deemed credible.        See Wei Sun, 883

 3   F.3d at 28 (“[A]n applicant may be generally credible but

 4   h[er] testimony may not be sufficient to carry the burden of

 5   persuading the fact finder of the accuracy of h[er] claim of

 6   crucial facts if [s]he fails to put forth corroboration that

 7   should    be   readily     available.”);    see    also    8 U.S.C.

 8   § 1158(b)(1)(B)(ii) (“Where the trier of fact determines that

 9   the   applicant   should   provide   evidence   that   corroborates

10   otherwise credible testimony, such evidence must be provided

11   unless the applicant does not have the evidence and cannot

12   reasonably obtain the evidence.”), § 1231(b)(3)(C) (applying

13   burden of proof standard for asylum in § 1158(b)(1)(B) to

14   withholding claims).       Insofar as Piao challenges the IJ’s

15   determination that she failed to adequately corroborate the

16   abortions without providing her an opportunity to explain the

17   missing evidence or evaluating her explanations, see Wei Sun,

18   883 F.3d at 31, remand for the IJ to do so would be futile.

19   That evidence relates to whether Piao had abortions, but the

20   agency assumed the truth of those events in reaching its

21   alternative,   dispositive    conclusion   that   Piao    failed   to

22   demonstrate that the fines she faced amounted to “force.” See

23   Gurung v. Barr, 929 F.3d 56, 62 (2d Cir. 2019) (noting that
                                      5
1    remand is futile “when the IJ articulates an alternative and

2    sufficient      basis   for    her   determination”).             Further,    the

3    agency was not compelled to conclude that Piao testified to

4    sufficient      “aggravating         circumstances”         surrounding       her

5    involuntary use of an intrauterine device under the family

6    planning    policy      so    as    to    establish       that    she   suffered

7    persecution.      See Mei Fun Wong v. Holder, 633 F.3d 64, 75 (2d

8    Cir. 2011).

9           2. Religion Claim

10          Piao challenges only the agency’s determination that she

11   did not establish that she would “more likely than not” suffer

12   future persecution on account of her religion.                          8 C.F.R.

13   § 1208.16(b)(2).         To    obtain         withholding    of    removal,   an

14   applicant must show either a “clear probability” that she

15   will be singled out for persecution or that the country of

16   removal has a pattern or practice of persecuting similarly

17   situated individuals.           Hongsheng Leng v. Mukasey, 528 F.3d

18   135,      143     (2d        Cir.        2008);     see      also       8 C.F.R.

19   § 1208.16(b)(2)(i), (ii).

20          The agency did not err in finding that Piao failed to

21   establish the requisite fear of persecution based on her

22   religious practice in China because she stated that Chinese

23   officials did not know that she attended her unregistered
                                               6
 1   church when it was raided in 1995, and she did not assert

 2   that officials expressed any interest in her as a result.

 3   See 8 C.F.R. § 1208.16(b)(2)(i), (ii); see also Jian Xing

 4   Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the

 5   absence      of    solid       support       in   the   record    .       .    .    ,   [an

 6   applicant’s] fear is speculative at best.”).                         “[I]n order to

 7   establish         eligibility        for     relief     based     exclusively            on

 8   activities        undertaken         after    h[er]     arrival   in          the   United

 9   States, [Piao] [had to] make some showing that authorities in

10   h[er] country of nationality are (1) aware of h[er] activities

11   or     (2)   likely       to    become       aware      of   h[er]        activities.”

12   Hongsheng Leng, 528 F.3d at 138.                      Piao did not assert that

13   officials had discovered her religious practice outside of

14   China, either for the several years that she lived in Russia

15   (on and off between 1992 and 2005) or for the years she has

16   attended church in the United States (since 2005).                             And given

17   that    there      are    50    to    70     million    Christians         who      attend

18   unregistered churches in China, the agency did not err in

19   finding      that        she    failed       to   demonstrate         a       reasonable

20   possibility that Chinese officials will likely discover her

21   religious practice.              See Xiang Jin Yang v. Lynch, 636 F.

22   App’x 60, 61 (2d Cir. 2016).

23          Piao does not challenge the agency’s finding that she
                                                  7
 1   failed to establish a pattern or practice of persecution of

 2   similarly situated individuals, but in any event, the agency

 3   reasonably concluded that the country conditions evidence did

 4   not show “systemic or pervasive” persecution of similarly

 5   situated Christians sufficient to demonstrate a pattern or

 6   practice of persecution in China.    In re A-M-, 23 I. & N.

 7   Dec. 737, 741 (B.I.A. 2005).

8        Piao’s failure to establish either past persecution or a

9    probability of future persecution was dispositive of both

10   withholding of removal and CAT relief because both forms of

11   relief were based on the same underlying facts.   See Paul v.

12   Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

13       For the foregoing reasons, the petition for review is

14   DISMISSED in part as to asylum and DENIED in remaining part.

15   All pending motions and applications are DENIED and stays

16   VACATED.

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




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