    15-2695
    Yan v. Sessions
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A088 043 670

                           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
    13th day of July, two thousand seventeen.

    PRESENT:
             JON O. NEWMAN,
             DENNIS JACOBS,
             ROBERT D. SACK,
                  Circuit Judges.
    _____________________________________

    CHENGMIN YAN,
             Petitioner,

                      v.                                             15-2695
                                                                     NAC
    JEFFERSON B. SESSIONS III, UNITED
    STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                        Ning Ye, Flushing, N.Y.

    FOR RESPONDENT:                        Benjamin C. Mizer, Principal
                                           Deputy Assistant Attorney
                                           General; Keith I. McManus,
                                           Assistant Director; Regan
                                           Hildebrand, Senior Litigation
                                           Counsel, Office of Immigration
                                           Litigation, United States
                                           Department of Justice,
                                           Washington, D.C.
      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 Chengmin Yan, a native and citizen of China,

seeks review of a July 24, 2015, decision of the BIA affirming

a March 11, 2014, decision of an Immigration Judge (“IJ”)

denying Yan’s application for asylum, withholding of removal,

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

re Chengmin Yan, No. A088 043 670 (B.I.A. July 24, 2015), aff’g

No. A088 043 670 (Immig. Ct. N.Y. City Mar. 11, 2014).      We assume

the   parties’    familiarity   with   the   underlying    facts    and

procedural history in this case.

      Under the circumstances of this case, we have reviewed both

the BIA’s and IJ’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); Yanqin Weng v.

Holder, 562 F.3d 510, 513 (2d Cir. 2009).

      As an initial matter, we decline to consider Yan’s

arguments concerning his employment-related claim because he

did not press this claim before the BIA.      See Lin Zhong v. U.S.

Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (providing

that judicially imposed issue exhaustion is mandatory).            And,
                                  2
for the reasons that follow, we conclude that the agency did

not   err    in       determining   that    Yan   failed       to   establish   a

well-founded fear of persecution based on his pro-democracy

activities in the United States.

      Absent          past   persecution,    an        alien    may   establish

eligibility for asylum by demonstrating a well-founded fear of

future persecution, which is a “subjective fear that is

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

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

8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b)(2); see also Y.C.

v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“For an asylum

claim, the applicant must show a reasonable possibility of

future persecution.”            (internal quotation marks omitted)).

“An asylum applicant can show a well-founded fear of future

persecution in two ways: (1) by demonstrating that he or she

‘would      be    singled     out   individually        for    persecution’     if

returned, or (2) by proving the existence of a ‘pattern or

practice         in    [the] . . . country        of    nationality . . . of

persecution of a group of persons similarly situated to the

applicant’ and establishing his or her ‘own inclusion in, and

identification with, such group.’”                 Y.C., 741 F.3d at 332

(quoting 8 C.F.R. § 1208.13(b)(2)(iii)).

      First, the agency did not err in concluding that Yan failed

to demonstrate a reasonable possibility that he would be singled
                                        3
out individually for persecution.           “Importantly, ‘to establish

a well-founded fear of persecution in the absence of any

evidence of past persecution, an alien must make some showing

that authorities in his [or her] country of nationality are

either aware of his [or her] activities or likely to become aware

of his [or her] activities.’”            Id. (quoting Hongsheng Leng v.

Mukasey, 528 F.3d 135, 143 (2d Cir. 2008)).               Although Yan

submitted a letter from his wife stating that she had been

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

activities, the IJ reasonably declined to admit this letter into

evidence because it was filed after the evidence submission

deadline.    See 8 C.F.R. § 1003.31(c); Dedji v. Mukasey, 525

F.3d 187, 191 (2d Cir. 2008).

    Absent his wife’s letter, the only evidence that Yan

provided    to   demonstrate   the       Chinese   authorities’   likely

awareness of his U.S. political activities was his three online

articles criticizing the Chinese government, which were posted

with his photograph and name, and his testimony that he handed

out fliers in public and was photographed during protests in

front of the Chinese Consulate.          However, the agency considered

this evidence and reasonably concluded that Yan’s fear of

persecution was speculative.         See Jian Xing Huang v. INS, 421

F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid support

in the record” a fear of persecution is not objectively
                                     4
reasonable and is “speculative at best.”); Y.C., 741 F.3d at

344 (citing Yue Wen Zhong v. Holder, 482 F. App’x 628, 630 (2d

Cir. 2012) (summary order) (“Although Zhong argues that the

Chinese   government   would    have   discovered   the     [four]

anti-Communist articles that he published on the internet, that

claim is speculative.”)); see also Xiao Ji Chen v. U.S. Dep’t

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

weight accorded to an applicant’s evidence “lie[s] largely

within the discretion of the IJ” (internal quotation marks

omitted)).    Indeed, Yan himself testified that the Chinese

government would not be able to identify him from just his

photograph and name.

    Second, the agency did not err in concluding that Yan failed

to establish a pattern or practice of persecution of

similarly-situated individuals—namely, ordinary members of the

China Democracy Party (“CDP”) who join the CDP in the United

States and return to China.    To establish a pattern or practice

of persecution against a particular group, an applicant must

demonstrate that the harm to that group is “systemic or

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

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

the agency correctly observed that while Yan and his witness

testified that two ordinary CDP members, who joined the CDP in

the United States, were persecuted after they returned to China,
                                 5
this testimony was uncorroborated by any objective evidence and

one of these individuals, unlike Yan, had advocated for a

violent overthrow of the Chinese government.    Further, the

country conditions evidence reasonably supports the agency’s

finding that high-profile CDP leaders and recruiters have been

persecuted for their pro-democracy activities in China, but not

ordinary members like Yan whose political activity occurred in

the United States.   See Xiao Ji Chen, 471 F.3d at 342.   The

agency therefore did not err in concluding that Yan failed to

show a pattern or practice of persecution of similarly-situated

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

denial of pattern or practice claim by low-level CDP member)

(citing Yan Zhu Tang v. Holder, 429 F. App’x 59, 60 (2d Cir.

2011) (summary order) (“The evidence Tang

submitted . . . indicates that the prominent leaders of

pro-democracy movements outside of China and political

dissidents within China have been persecuted.   However, as the

agency found, their persecution does not establish that Tang

is also at risk of persecution if she [is] returned to China

because she has been only a low-level activist outside of

China.”)).

    Accordingly, because the agency reasonably found that Yan

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

did not err in denying asylum or in concluding that he
                               6
necessarily failed to meet the higher burden for withholding

of removal or CAT relief.    Id. at 335.

    Yan’s remaining due process claims are both unexhausted and

meritless.    See Lin Zhong, 480 F.3d at 122.

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

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

is DISMISSED as moot.    Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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