         13-2220
         Xu v. Lynch
                                                                                       BIA
                                                                                 Morace, IJ
                                                                               A089 080 556
                            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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 15th day of September, two thousand fifteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                DEBRA ANN LIVINGSTON,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       GI FU XU,
14                     Petitioner,
15
16                     v.                                       13-2220
17                                                              NAC
18
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Giacchino J. Russo, Flushing, New
25                                     York.
26
27       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
28                                     General; Terri J. Scadron, Assistant
29                                     Director; Hillel R. Smith, Attorney;
 1                           Office of Immigration Litigation,
 2                           United States Department of Justice,
 3                           Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Gi Fu Xu, a native and citizen of China, seeks review

10   of a May 8, 2013 order of the BIA affirming the June 1, 2011

11   decision of an Immigration Judge (“IJ”), denying her asylum,

12   withholding of removal, and relief under the Convention

13   Against Torture (“CAT”).   In re Gi Fu Xu, No. A089 080 556

14   (B.I.A. May 8, 2013), aff’g A089 080 556 (Immig. Ct. N.Y.C.

15   June 1, 2011).   We assume the parties’ familiarity with the

16   underlying facts and procedural history in this case.

17       Under the circumstances of this case, we have reviewed

18   both the IJ’s and the BIA’s decisions “for the sake of

19   completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

20   2008)(internal quotation marks omitted).    The applicable

21   standards of review are well established.    See 8 U.S.C.

22   § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

23   510, 513 (2d Cir. 2009).

24       Here, the agency did not err in concluding that Xu


                                   2
 1   failed to demonstrate a well-founded fear of persecution on

 2   account of her sister’s membership in the Chinese Democracy

 3   and Justice Party (“CDJP”).    Absent past persecution, an

 4   alien may establish eligibility for asylum by demonstrating

 5   a well-founded fear of future persecution.     See 8 C.F.R.

 6   § 1208.13(b)(2).   To establish a well-founded fear of

 7   persecution, an applicant must show that she subjectively

 8   fears persecution and that this fear is objectively

 9   reasonable.   Ramsameachire v. Ashcroft, 357 F.3d 169, 178

10   (2d Cir. 2004).

11       Xu has never asserted that she herself is a member of

12   the CDJP, that Chinese government officials believe that she

13   is involved with the CDJP, or that officials have shown any

14   interest in harming her based on her sister’s activities.

15   Therefore, the agency reasonably found her claim of a well-

16   founded fear speculative.     See Lecaj v. Holder, 616 F.3d

17   111, 117 (2d Cir. 2010) (finding that a “speculative

18   anxiety” does not make a fear of persecution objectively

19   reasonable); Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)

20   (holding that alien’s fear is not objectively reasonable if

21   it lacks “solid support in the record” and is “speculative

22   at best”).


                                     3
 1         Moreover, Xu’s claim is further undercut by the fact

 2   that her family members have remained in China unharmed

 3   since her niece was questioned by police in 2008.    See

 4   Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).

 5   Accordingly, the IJ did not err in finding that Xu failed to

 6   establish a well-founded fear of being singled out for

 7   persecution on account of her sister’s CDJP activities.

 8         As Xu argues, an applicant need not “provide evidence

 9   that there is a reasonable possibility he or she would be

10   singled out individually for persecution if . . . [t]he

11   applicant establishes that there is a pattern or practice in

12   his or her country of nationality . . . of persecution of a

13   group of persons similarly situated to the applicant.”

14   8 C.F.R. § 1208.13(b)(2)(iii)(A).    The BIA has provided that

15   a “pattern or practice” of persecution is the “systemic or

16   pervasive” persecution of a group.    In re A-M-, 23 I. & N.

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

18         The BIA properly declined to address Xu’s pattern or

19   practice argument because she did not raise it before the

20   IJ.   See In re J-Y-C-, 24 I & N Dec. 260, 261 n. 1 (BIA

21   2007).   However, even if this argument were properly before

22   this Court, it fails.   Contrary to Xu’s contention, neither


                                    4
 1   the IJ nor the background reports found a pattern or

 2   practice of persecution of individuals whose family members

 3   are suspected of opposing the government.

 4       Accordingly, because the agency reasonably found that

 5   Xu failed to demonstrate a well-founded fear of persecution

 6   on account of her sister’s CDJP activities, it did not err

 7   in denying her applications for asylum and withholding of

 8   removal, and for CAT relief,    as those claims were based on

 9   the same factual predicate.    See Paul v. Gonzales, 444 F.3d

10   148, 156-57 (2d Cir. 2006).

11       For the foregoing reasons, the petition for review is

12   DENIED.

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16
17




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