         08-6274-ag
         Li v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A093-397-439
                              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 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 8 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                          JON O. NEWMAN,
 8                          BARRINGTON D. PARKER,
 9                          DEBRA ANN LIVINGSTON,
10                                   Circuit Judges.
11
12       _______________________________________
13
14       HAN LI,
15                          Petitioner,
16
17                           v.                                 08-6274-ag
18                                                              NAC
19
20       ERIC H. HOLDER JR., UNITED STATES
21       ATTORNEY GENERAL, 1
22                Respondent.
23       ______________________________________
24
25
26


                        1
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder Jr. is
             automatically substituted for former Attorney Michael B.
             Mukasey as the respondent in this case.
 1   FOR PETITIONER:        Fuhao Yang, New York, New York.
 2
 3   FOR RESPONDENT:        Tony West, Assistant Attorney
 4                          General, Civil Division; Susan
 5                          Houser, Senior Litigation Counsel;
 6                          Marion E. Guyton, Trial Attorney
 7                          United States Department of Justice,
 8                          Washington, D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

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

12   ORDERED, ADJUDGED, AND DECREED that the petition for review

13   is DENIED.

14       Petitioner Han Li, a native and citizen of the People’s

15   Republic of China, seeks review of a December 1, 2008 order

16   of the BIA affirming the September 5, 2007 decision of

17   Immigration Judge (“IJ”) Robert Weisel denying Li’s

18   application for asylum, withholding of removal, and relief

19   under the Convention Against Torture (“CAT”).   In re Han Li,

20   No. A 093 397 439 (B.I.A. Dec. 1, 2008), aff’g No. A 093 397

21   439 (Immig. Ct. N.Y. City Sept. 5, 2007).   We assume the

22   parties’ familiarity with the underlying facts and

23   procedural history in this case.

24       When the BIA does not expressly “adopt” the IJ’s

25   decision, but its brief opinion closely tracks the IJ’s

26   reasoning, the Court may consider both the IJ’s and the



                                  2
1    BIA’s opinions for the sake of completeness.       Zaman v.

2    Mukasey, 514 F.3d 233, 236 (2d Cir. 2008).       We review the

3    agency’s factual findings under the substantial evidence

4    standard.   8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S.

5    Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).

6    We review de novo questions of law and the application of

7    law to undisputed fact.   Salimatou Bah v. Mukasey, 529 F.3d

8    99, 110 (2d Cir. 2008).

9    I.   Family Planning Claim

10        Li argues that the agency erred in concluding that she

11   failed to demonstrate her eligibility for asylum,

12   withholding of removal, and CAT relief based on the birth of

13   her children in this country.       However, this argument fails

14   where we have previously reviewed the agency’s consideration

15   of similar evidence and have found no error in its

16   conclusion that such evidence was insufficient to establish

17   an objectively reasonable fear of persecution.       See Jian Hui

18   Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir. 2008).

19   Although Li submitted evidence showing that her father and a

20   neighbor were sterilized more than ten years ago, she did

21   not present evidence indicating that individuals similarly

22   situated to her – those with U.S.-born children – are


                                     3
1    currently subject to persecution for violating the family

2    planning policy.   See id. at 160.

3    II.   Falun Gong Claim

4          Li also argues that the agency erred by failing to find

5    that she demonstrated a well-founded fear of persecution

6    based on her practice of Falun Gong.     In support of that

7    claim, she argues that the documentary evidence indicates

8    that China has banned the practice of Falun Gong and has

9    arrested and detained Falun Gong practitioners.     Li

10   correctly notes that the record indicates that Falun Gong

11   practitioners have been arrested, detained, and subject to

12   severe mistreatment.     Thus, the BIA’s observation that Li is

13   not an activist, teacher, or leader in the Falun Gong

14   movement is likely an insufficient basis upon which to

15   conclude that her fear is not well-founded.     However, even

16   if we were to find that the agency erred in that respect,

17   remand is not required because the agency offered a valid

18   alternative basis for its denial of relief.     See Xiao Ji

19   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir.

20   2006).   The BIA reasonably found that Li did not establish

21   that her practice was likely to come to the attention of

22   Chinese authorities.     As we have held, “to establish a


                                     4
1    well-founded fear of persecution in the absence of any

2    evidence of past persecution, an alien must make some

3    showing that authorities in his country of nationality are

4    either aware of his activities or likely to become aware of

5    his activities.”   See Hongsheng Leng v. Mukasey, 528 F.3d

6    135, 143 (2d Cir. 2008); see also Jian Xing Huang v. INS,

7    421 F.3d 125, 128-29 (2d Cir. 2005) (holding that, absent

8    solid support in the record for the petitioner’s assertion

9    that he would be persecuted, his fear was “speculative at

10   best”).   Here, the BIA did not err in concluding that Li,

11   who only began her practice of Falun Gong after entering

12   this country, did not show that Chinese authorities were

13   likely to become aware of her activities. See Hongsheng

14   Leng, 528 F.3d at 143.

15       Because Li was unable to show the objective likelihood

16   of persecution needed to make out an asylum claim, she was

17   necessarily unable to meet the higher standard required to

18   succeed on a claim for withholding of removal or CAT relief

19   where all three claims bore the same factual predicate.      See

20   Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Kyaw

21   Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir. 2006) (holding

22   that torture is “something more severe than the kind of

23   treatment that would suffice to prove persecution”).

                                   5
1        For the foregoing reasons, the petition for review is

2    DENIED.   As we have completed our review, any pending motion

3    for a stay of removal in this petition is DISMISSED as moot.

4    Any pending request for oral argument in this petition is

5    DENIED in accordance with Federal Rule of Appellate

6    Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

 7                               FOR THE COURT:
 8                               Catherine O’Hagan Wolfe, Clerk
 9
10
11




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