20-2029

Chaohui Dong v. Garland

BIA

Thompson, IJ

A206 053 450

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.

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 24th day of April, two thousand

twenty-three.

PRESENT:

DEBRA ANN LIVINGSTON,

Chief Judge,

BETH ROBINSON,

ALISON J. NATHAN,

Circuit Judges.

_____________________________________

CHAOHUI DONG, AKA DONG 

CHAOHUI,

Petitioner,

v. 20-2029

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________
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FOR PETITIONER: Gary J. Yerman, Esq., The Yerman Group, 

LLC, New York, NY. 

FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney 

General; Mary Jane Candaux, Assistant 

Director; Nicole J. Thomas-Dorris, Trial 

Attorney, Office of Immigration Litigation, 

United States Department of Justice, 

Washington, DC.

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 in part and DISMISSED in part.

Petitioner Chaohui Dong (“Dong”), a native and citizen of the People’s 

Republic of China, seeks review of a June 10, 2020 decision of the BIA affirming a

May 30, 2018 decision of an Immigration Judge (“IJ”) denying his applications for 

asylum, withholding of removal, relief under the Convention Against Torture 

(“CAT”), and cancellation of removal. In re Chaohui Dong, No. A 206 053 450

(B.I.A. June 10, 2010), aff’g No. A 206 053 450 (Immig. Ct. N.Y.C. May 30, 2018). 

We assume the parties’ familiarity with the underlying facts and procedural 

history.

We have considered both the IJ’s and the BIA’s decisions “for the sake of 

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

2006). We review the agency’s factual findings for substantial evidence and 
3

questions of law de novo. See Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014). 

“[T]he administrative findings of fact are conclusive unless any reasonable 

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 

§ 1252(b)(4)(B). Our review of the agency’s denial of cancellation of removal is 

limited to constitutional claims and questions of law. Id. § 1252(a)(2)(B)(i), (D); 

Mendez v. Holder, 566 F.3d 316, 319–22 (2d Cir. 2009).

I. Asylum, Withholding of Removal, and CAT Relief 

Dong asserted a fear of persecution in China on account of his practice of 

Christianity in the United States. Accordingly, he had the burden to establish an 

“objectively reasonable” fear of future persecution. Ramsameachire v. Ashcroft, 357 

F.3d 169, 178 (2d Cir. 2004); see also 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. 

§ 1208.13(b)(2). An applicant can demonstrate either (1) a “reasonable 

possibility” that he “would be singled out individually for persecution” or (2) “a 

pattern or practice” of persecution of “a group of persons similarly situated to the 

applicant.” 8 C.F.R. § 1208.13(b)(2)(iii). “[T]o establish eligibility for relief based 

exclusively on activities undertaken after his arrival in the United States, an alien 

must make some showing that authorities in his country of nationality are (1) 

aware of his activities” or (2) that there is a “reasonable possibility” that they will 
4

“become aware of his activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 138, 

143 (2d Cir. 2008) (per curiam). The agency reasonably concluded that Dong 

failed to meet his burden. 

The record supports the IJ’s determinations that Dong would not regularly 

attend church or preach the gospel in China. Dong conceded that in the United 

States he has attended church less than once a month because of his work schedule. 

He further explained that he did not switch churches to attend more regularly 

because the one he attends registers attendance. Moreover, Dong has not 

engaged in any public proselytizing in the United States. Accordingly, the IJ 

reasonably inferred from this evidence that Dong would be unlikely regularly to 

attend church or proselytize publicly in China. See Siewe v. Gonzales, 480 F.3d 160, 

167 (2d Cir. 2007) (“Drawing inferences from direct and circumstantial evidence is 

a routine and necessary task of any factfinder.”). 

There is no merit to Dong’s argument that the IJ applied the higher 

likelihood standard for withholding of removal. Although the IJ used the word 

“likely,” the decision does not reflect that the IJ was improperly applying the more 

stringent standard for withholding of removal, that persecution be “more likely 

than not” to occur. 8 C.F.R. § 1208.16(b). The IJ’s decision is consistent with 
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Hongsheng Leng: “Put simply, 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 country of nationality are either aware of his activities or 

likely to become aware of his activities. The appropriate burden of proof varies 

according to the type of relief sought: an applicant must show a ‘clear probability’

in the withholding context, and only ‘a reasonable possibility’ in the asylum 

context.” 528 F.3d at 143 (emphasis added; citation and internal quotation marks 

omitted). 

Contrary to Dong’s argument, the IJ considered Dong’s additional “less 

public” religious activities, but reasonably concluded that, given the lack of 

evidence that he would attend church regularly or engage in public activities, his 

fear of future persecution based on the Chinese authorities becoming aware of his 

religious practice was speculative. See Jian Xing Huang v. U.S. INS, 421 F.3d 125,

129 (2d Cir. 2005). 

The record also supports the IJ’s determination that Dong failed to establish 

a pattern or practice of persecution in his home province of Fujian. The State 

Department report does not identify any incidents of persecution of Christians in 

Fujian, the ChinaAid report reveals that one church was demolished, and none of 
6

the evidence reflects that ordinary church members are subject to persecution in 

Fujian Province. See Jian Liang v. Garland, 10 F.4th 106, 117 (2d Cir. 2021) (holding 

that absent past harm, an applicant’s fear of persecution as a Christian failed 

because country conditions evidence did not speak to persecution in Fujian); Jian

Hui Shao v. Mukasey, 546 F.3d 138, 142, 149, 165 (2d Cir. 2008) (finding no error in 

the agency’s requirement that an applicant demonstrate a well-founded fear of 

persecution specific to his or her local area when persecutory acts vary according 

to locality). Dong’s failure to establish an objectively reasonable fear of 

persecution for asylum is also dispositive of withholding of removal and CAT 

relief. See Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010) (holding that a failure 

to show the fear of persecution required for asylum “necessarily” precludes 

meeting the higher burden for withholding of removal and CAT relief). 

II. Cancellation of Removal 

To establish eligibility for cancellation of removal, Dong had to “establish[] 

that [his] removal would result in exceptional and extremely unusual hardship to 

[his] spouse, parent, or child, who is a citizen of the United States or an alien 

lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). The 

hardship to a qualifying relative “must be substantially beyond the ordinary 
7

hardship that would be expected when a close family member leaves this 

country.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 (B.I.A. 2001) (citation and 

internal quotation marks omitted). The agency considers “the ages, health, and 

circumstances of qualifying lawful permanent resident and United States citizen 

relatives,” including how a lower standard of living, diminished educational 

opportunities, or adverse conditions in the country of removal might affect the 

relatives. Id. at 63–64; see also In re Andazola-Rivas, 23 I. & N. Dec. 319, 322 (B.I.A. 

2002) (describing the hardship requirement as a “very high standard”). 

Our jurisdiction to review the agency’s denial of cancellation of removal 

based on an applicant’s failure to satisfy the hardship requirement is limited to 

constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(B)(i), (D);

Patel v. Garland, 142 S. Ct. 1614, 1627 (2022). For jurisdiction to attach, such claims 

must be “colorable.” Barco-Sandoval v. Gonzales, 516 F.3d 35, 40–41 (2d Cir. 2008). 

A colorable question of law may arise if the agency “totally overlook[s]” or 

“seriously mischaracterize[s]” evidence, Mendez, 566 F.3d at 323, but not where the 

applicant “merely quarrels over the correctness of the factual findings or 

justification for the discretionary choices,” Xiao Ji Chen v. U.S. Dep’t of Just., 471 

F.3d 315, 329 (2d Cir. 2006).
8

We dismiss as to cancellation because Dong has not raised a colorable 

question of law. He argues that the BIA erred by relying on Matter of J–J–G–, 27 

I. & N. Dec. 808 (B.I.A. 2020), for the proposition that, to establish hardship based 

on a qualifying relative’s health, the applicant must show that the relative has a 

serious medical condition. However, the BIA cited Matter of J–J–G– for the 

proposition that “the respondent must show that adequate medical care is not 

reasonably available in the country of removal.” C.A.R. 5. And the IJ considered

this issue, finding that Dong’s wife received chemotherapy treatment in China, 

and noting that there was no evidence that her treatment in the United States was 

ongoing or that relocating to China would cause a “disruption” in treatment. Id.

at 57.

Dong also argues that the IJ failed to consider evidence of his wife’s 

treatment. The IJ did not “overlook” or “mischaracterize” the evidence. See 

Mendez, 566 F.3d at 323. The IJ acknowledged Dong’s wife’s diagnosis and the 

fact that she had travelled to China for treatment; although the IJ found he lacked 

the technical medical knowledge to interpret lab reports, Dong has conceded that 

his wife was being monitored for recurrence and not receiving treatment at the 

time of the hearing. To the extent Dong contends that the IJ gave this factor 
9

insufficient weight, we lack jurisdiction to consider such an argument. See Xiao Ji 

Chen, 471 F.3d at 332. 

Finally, there is nothing to support Dong’s argument that the IJ failed to 

consider the hardship evidence cumulatively. See In re Gonzalez Recinas, 23 I. & 

N. Dec. 467, 472 (B.I.A. 2002) (requiring an “assessment of hardship factors in their 

totality”). The IJ considered Dong’s wife’s health, that his children did not have 

“significant school issues or medical issues” and had spent years in China, and the 

family’s financial resources. C.A.R. 57. Dong argues that the IJ did not consider 

the impact Dong’s wife’s health had on the family, but the IJ specifically noted that 

“the Court at no point is minimizing the tremendous impact this has had on 

[Dong] and his family.” Id. at 56. Accordingly, the record does not compel the 

conclusion that the IJ failed to consider the hardships cumulatively. See Xiao Ji 

Chen, 471 F.3d at 336 n.17 (“[W]e presume that an IJ has taken into account all of 

the evidence before him, unless the record compellingly suggests otherwise.”). 

For the foregoing reasons, the petition for review is DENIED in part and 

DISMISSED in remaining part. All pending motions and applications are 

DENIED and stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court