     16-3015
     Tao v. Sessions
                                                                                       BIA
                                                                                 Laforest, IJ
                                                                               A087 601 002
                            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   23rd day of February, two thousand eighteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            DENNY CHIN,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   LI TAO,
14                     Petitioner,
15
16                     v.                                            16-3015
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Mike P. Gao, Flushing, NY.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
26                                       Attorney General; Nancy E. Friedman,
27                                       Senior Litigation Counsel; Sharon M.
28                                       Clay, Trial Attorney, Office of
29                                       Immigration Litigation, United
30                                       States Department of Justice,
31                                       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 is

4    DENIED.

5        Petitioner Li Tao, a native and citizen of the People’s

6    Republic of China, seeks review of an August 9, 2016, decision

7    of the BIA affirming an April 20, 2015, decision of an

8    Immigration Judge (“IJ”) denying Tao’s application for asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).      In re Li Tao, No. A087 601 002 (B.I.A. Aug.

11   9, 2016), aff’g No. A087 601 002 (Immig. Ct. N.Y. City April

12   20, 2015).    We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed both

15   IJ’s and BIA’s opinions “for the sake of completeness.”

16   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

17   2006).       The    applicable   standards   of   review   are   well

18   established.       8 U.S.C. § 1252(b)(4)(B); Su Chun Hu v. Holder,

19   579 F.3d 155, 158 (2d Cir. 2009).

20       Because Tao alleged only a fear of future persecution on

21   account of her membership in the China Democracy Party (“CDP”)

22   in the United States, she had the burden to show a well-founded

23   fear of future persecution, which is a “subjective fear that

                                        2
1    is objectively reasonable.”       Dong Zhong Zheng v. Mukasey, 552

2    F.3d 277, 284 (2d Cir. 2009) (internal quotation marks omitted);

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

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

5    claim, the applicant must show a reasonable possibility of

6    future persecution.” (internal quotation marks omitted)).            “An

7    asylum applicant can show a well-founded fear of future

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

9    ‘would   be    singled   out   individually     for   persecution’    if

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

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

12   persecution of a group of persons similarly situated to the

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

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

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

16       First, we conclude that the agency did not err in

17   determining that Tao failed to demonstrate an objectively

18   reasonable possibility that she would be singled out

19   individually for persecution.          “[A]n alien must make some

20   showing that authorities in his or her country of nationality

21   are either aware of his or her activities or likely to become

22   aware of his or her activities.”          Y.C., 741 F.3d at 332

23   (internal citation, quotation marks, and brackets omitted).

                                        3
1    Tao argues that online publication of her four pro-democracy

2    articles and photographs of protests she attended established

3    the Chinese government’s likely awareness of her U.S. political

4    activities, particularly in light of her own testimony and

5    testimony from a witness that that the government would discover

6    her activities.   Although the agency found Tao and her witness

7    credible, that only satisfied the subjective prong of the test.

8    The agency then reasonably concluded that Tao’s fear of

9    persecution was speculative because it was unlikely that the

10   Chinese government would discover her four articles and protest

11   photographs.   See Jian Xing Huang v. U.S INS, 421 F.3d 125, 129

12   (2d Cir. 2005) (stating that in “absence of solid support in

13   the record” a fear of persecution is not objectively reasonable

14   and is “speculative at best.”); Y.C., 741 F.3d at 334, 336-37

15   (finding insufficient grounds for awareness based on either

16   publication of one article or applicant’s member page, name,

17   and photograph on CDP’s website).

18       Second, we conclude that the agency did not err in

19   determining that Tao failed to establish a pattern or practice

20   of persecution of similarly-situated individuals—namely,

21   low-level CDP members who joined the CDP in the United States.

22   To establish a pattern or practice of persecution of a

23   particular group, an applicant must demonstrate that the harm

                                    4
1    to that group is “systemic or pervasive.”       In re A-M-, 23 I.

2    & N. Dec. 737, 741 (B.I.A. 2005); see Mufied v. Mukasey, 508

3    F.3d 88, 92-93 (2d Cir. 2007).       Although Tao and her witness

4    identified a few arrests of low-level CDP members who had been

5    active in the United States, the agency reasonably concluded

6    that the isolated incidents did not amount to a pattern or

7    practice.     See Santoso v. Holder, 580 F.3 110, 111-12 (2d Cir.

8    2009) (finding no error in agency’s denial of pattern or

9    practice claim where persecution was “sporadic” and

10   “localized”).

11       Further, as the agency reasoned, the country conditions

12   evidence reflects that high-profile CDP leaders and recruiters

13   have been persecuted for their pro-democracy activities in

14   China, but does not identify persecution of low-level CDP

15   members, like Tao, whose activities occurred only in the United

16   States.   The agency therefore did not err in concluding that

17   Tao failed to show a pattern or practice of persecution of

18   similarly-situated individuals.      See Y.C., 741 F.3d at 334-35

19   (affirming agency’s denial of pattern or practice claim by

20   low-level Chinese Alliance for Democracy member where evidence

21   showed persecution of prominent leaders of pro-democracy

22   movements outside of China and political dissidents within

23   China).     As the agency concluded, Tao failed to demonstrate an

                                      5
1    objectively reasonable fear of persecution.    See id.   Thus,

2    the agency did not err in denying asylum or in concluding that

3    Tao necessarily failed to meet the higher burdens for

4    withholding of removal and CAT relief.    See Lecaj v. Holder,

5    616 F.3d 111, 119-20 (2d Cir. 2010).

6        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

13   34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk




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