     19-451
     Zhu v. Barr
                                                                                  BIA
                                                                            Douchy, IJ
                                                                          A206 580 554
                        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 9th day of June, two thousand twenty.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            DENNY CHIN,
 9            JOSEPH F. BIANCO,
10                 Circuit Judges.
11   _____________________________________
12
13   SHENG ZHU,
14            Petitioner,
15
16                 v.                                            19-451
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Jay Ho Lee, Jay Ho Lee Law
24                                    Offices LLC, New York, NY.
25
26   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
27                                    Attorney General; Kiley Kane,
28                                    Senior Litigation Counsel; Deitz
29                                    P. Lefort, Trial Attorney, Office
30                                    of Immigration Litigation, United
31
 1                                     States Department of Justice,
 2                                     Washington, DC.
 3
 4       UPON DUE CONSIDERATION of this petition for review of a

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

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

 7   is DENIED.

 8       Petitioner         Sheng   Zhu,    a    native    and    citizen     of   the

 9   People’s Republic of China, seeks review of a February 7,

10   2019 decision of the BIA affirming a                       November 13, 2017

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

12   withholding       of   removal,   and       relief   under    the   Convention

13   Against Torture (“CAT”).          In re Sheng Zhu, No. A206 580 554

14   (B.I.A. Feb. 7, 2019), aff’g No. A206 580 554 (Immig. Ct.

15   N.Y. City Nov. 13, 2017).         We assume the parties’ familiarity

16   with the underlying facts and procedural history.

17       In     lieu    of    filing   a     brief,       the    Government    moves

18   for summary denial of Zhu’s petition for review.                    Rather than

19   determine if the petition is frivolous as required for summary

20   denial, Pillay v. INS, 45 F.3d 14, 16–17 (2d Cir. 1995), we

21   construe the Government’s motion as a brief and deny the

22   petition on the merits.               Under the circumstances of this

23   case, we have reviewed both the IJ’s and BIA’s decisions “for

24   the sake of completeness.”             Wangchuck v. Dep’t of Homeland
                                             2
 1   Sec., 448 F.3d 524, 528 (2d Cir. 2006).                  The standards of

 2   review are well established.              See Y.C. v. Holder, 741 F.3d

 3   324, 332 (2d Cir. 2013).

 4         The agency did not err in finding that Zhu failed to meet

 5   his burden of showing an objectively reasonable fear of future

 6   persecution.         Absent    past   persecution,       an    applicant   may

 7   prevail   on    an    asylum    claim     by    demonstrating      that    “he

 8   subjectively fears future persecution and . . . that his fear

 9   is objectively reasonable.”           Ramsameachire v. Ashcroft, 357

10   F.3d 169, 178 (2d Cir. 2004).              An applicant may make this

11   showing by establishing either “a reasonable possibility he

12   . . . would be singled out individually for persecution,” or

13   “a pattern or practice” of persecution of “persons similarly

14   situated” to him.         8 C.F.R. §          1208.13(b)(2)(iii)(A); see

15   also Y.C., 741 F.3d at 332; In re A-M-, 23 I. & N. Dec. 737,

16   741   (B.I.A.   2005)     (defining       a    pattern    or    practice   of

17   persecution as the “systemic or pervasive” persecution of a

18   group).   Where the claim is based on activities undertaken

19   after the applicant’s arrival in the United States, this

20   requires “some showing that authorities in his country of

21   nationality are (1) aware of his activities or (2) likely to

22   become aware of his activities.”              Hongsheng Leng v. Mukasey,

                                           3
 1   528 F.3d 135, 138 (2d Cir. 2008).           A “fear may be well-founded

 2   even if there is only a slight, though discernible, chance of

 3   persecution.”       Diallo v. INS, 232 F.3d 279, 284 (2d Cir.

 4   2000) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431

 5   (1987)).     But a fear is not objectively reasonable if it

 6   lacks “solid support” in the record and is merely “speculative

 7   at best.”    Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d

 8   Cir. 2005).

 9       The agency reasonably concluded that Zhu’s fear was not

10   objectively reasonable.          First, Zhu failed to establish that

11   the Chinese authorities were aware of his activities or would

12   likely become aware of them.               He asserted that “it [was]

13   possible” that the Chinese government monitored his WeChat

14   activity and was aware of his proselytizing, due to the

15   Chinese     government’s      ban     on     proselytism.           Certified

16   Administrative Record (“CAR”) at 97.               However, the 2009 State

17   Department       report    reflects       that    proselytizing      is   not

18   completely banned, but rather permitted in registered places

19   of worship and private settings.                 The 2016 report provides

20   that the State Administration for Religious Affairs allows

21   family     and   friends    to    meet     for     home   worship    without

22   registering and, in a brief paragraph that appears to place

                                           4
 1   restrictions on Buddhists, states that public proselytizing

 2   and   “meeting   in    unregistered      places      of    worship     is    not

 3   permitted.”          CAR at 127.     The 2016 report provides both

 4   that “[r]eligious regulations . . . vary by province” and

 5   that there are continuing reports of repression throughout

 6   China,   including      restrictions      on     “expressing       religious

 7   beliefs in public and in private.”           CAR at 127, 129.          Neither

 8   report discusses incidents of persecution of Catholics or

 9   other religious adherents for posts on social media.                    Based

10   on this evidence, we cannot find error in the agency’s

11   conclusion    that    the   2016   report      did   not   establish        that

12   Christians were barred from proselytizing.                      See Siewe v.

13   Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where there are

14   two   permissible     views   of   the   evidence,        the   factfinder’s

15   choice between them cannot be clearly erroneous.” (internal

16   quotation     marks    omitted)).           Accordingly,         the    agency

17   reasonably concluded that Zhu failed to show that his fear of

18   persecution for posts on WeChat is more than speculative.

19   See Jian Xing Huang, 421 F.3d at 129.

20         Second, Zhu did not establish a pattern or practice of

21   persecution of similarly situated individuals.                   He referred

22   to the arrest of a human rights activist who used WeChat;

                                         5
 1   however, the article he submitted did not elaborate on whether

 2   the activist’s WeChat postings prompted the arrest and, more

 3   significantly, Zhu is not a human rights activist and did not

 4   show that the Chinese authorities would dedicate the same

 5   attention to his activities.                 To the extent that Zhu fears

 6   persecution because he would attend an unregistered church in

 7   China,   the     record       reflects    that    repression     of    religious

8    activities varies by province, and the evidence does not

9    establish      a pattern or practice of            persecution        of   church

10   members in Zhu’s native Fujian Province.                     See Jian Hui Shao

11   v. Mukasey, 546 F.3d 138, 149, 169–70 (2d Cir. 2008) (finding

12   no    error   in   the       agency’s    requirement     that    an   applicant

13   demonstrate a well-founded fear of persecution specific to

14   applicant’s region when persecutory acts in China vary).                     The

15   country-conditions evidence reflects that “[i]n some parts of

16   the    country”        the    authorities        did   not    interfere      with

17   unregistered churches, while in other areas, such churches

18   were shut down.         CAR at 143.       The reports that Zhu submitted

19   did not mention restrictions on churches in Fujian.

20         Lastly, we deny Zhu’s request for remand for the agency

21   to    consider     a   2018     State    Department     report    because    new

22   evidence that was not submitted to the agency is not a basis

                                              6
 1   for remand.    See 8 C.F.R. § 1003.2(c) (providing for motions

 2   to   reopen   for   consideration       of   new   evidence   before   the

 3   BIA); Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir.

 4   2007).    The appropriate course is for Zhu to file a motion

 5   to reopen with the BIA.     Xiao Xing Ni, 494 F.3d at 269.

 6        In sum, Zhu did not meet his burden for asylum, and thus,

 7   he “necessarily” failed to meet the higher standards for

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

9    616 F.3d 111, 119 (2d Cir. 2010).

10        For the foregoing reasons, the petition for review is

11   DENIED.   All pending motions and applications are DENIED and

12   stays VACATED.

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




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