16-885 Zheng v. Sessions BIA Nelson, IJ A206 074 191 

### 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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **17 th** **day of April, two thousand seventeen.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **DENNIS JACOBS,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **MEI ZHENG,** 13 Petitioner **,** 14 15 **v. 16-885** 16 **NAC** 17 **JEFFERSON B. SESSIONS III, UNITED** 18 **STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Dehai Zhang, Flushing, N.Y. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal 25 Deputy Assistant Attorney 26 General; Douglas E. Ginsburg, 27 Assistant Director; Paul Fiorino, 28 Senior Litigation Counsel, 29 Office of Immigration Litigation, 30 United States Department of 31 Justice, Washington, D.C. 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Mei Zheng, a native and citizen of China, seeks 5 review of a March 8, 2016, decision of the BIA affirming a 6 January 26, 2015, decision of an Immigration Judge (“IJ”) 7 denying Zheng’s application for asylum, withholding of removal, 8 and relief under the Convention Against Torture (“CAT”) and 9 finding that Zheng had knowingly filed a frivolous asylum 10 application. In re Mei Zheng, No. A206 074 191 (B.I.A. Mar. 11 8, 2016), aff’gNo. A206 074 191 (Immig. Ct. N.Y. City Jan. 26, 12 2015). We assume the parties’ familiarity with the underlying 13 facts and procedural history in this case. 14 We have reviewed the decisions of both the IJ and the BIA. 15 Yun-Zui Guan v. Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). The 16 applicable standards of review are well established. See 17 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder , 562 F.3d 510, 18 513 (2d Cir. 2009). 19

**I. Frivolous Finding**  20 “A person who makes an application for asylum determined 21 to be ‘frivolous,’ or deliberately and materially false, is 22 subject to a grave penalty: permanent ineligibility for most 233 forms of relief under the immigration laws.” Mei Juan Zheng 1 v. Mukasey , 514 F.3d 176, 178 (2d Cir. 2008); see8 U.S.C. 2 § 1158(d)(6). “Given the serious consequences of a 3 frivolousness finding, the [governing] regulation provides a 4 number of procedural safeguards[:] . . . (1) notice to the alien 5 of the consequences of filing a frivolous application; (2) a 6 specific finding by the Immigration Judge or the Board that the 7 alien knowingly filed a frivolous application; (3) sufficient 8 evidence in the record to support the finding that a material 9 element of the asylum application was deliberately fabricated; 10 and (4) an indication that the alien has been afforded 11 sufficient opportunity to account for any discrepancies or 12 implausible aspects of the claim.” Matter of Y-L- , 24 I. & N. 13 Dec. 151, 155 (B.I.A. 2007) (discussing 8 C.F.R. § 1208.20). 14 Zheng’s assertions that the agency failed to comply with 15 the required procedures are meritless. First, the agency did 16 not err by finding that Zheng received notice of the 17 consequences of filing a frivolous application by virtue of the 18 written notice contained in her application. See Niang v. 19 Holder , 762 F.3d 251, 254 (2d Cir. 2014) (“Although we 20 understand that IJs frequently provide a warning of the 21 consequences of filing a frivolous application, nothing in the 22 INA expressly requires that the warning be given by an IJ. The 234 INA requires only that the applicant ‘receive []’ notice at the 1 time of filing.” (quoting 8 U.S.C. § 1158(d)(6)) (internal 2 citation omitted)). While Zheng claims that she did not 3 understand the written warnings in her application because she 4 “was not fluent” in English, the agency’s contrary finding is 5 supported by substantial evidence. See 8 U.S.C. 6 § 1252(b)(4)(B) (“[A]dministrative findings of fact are 7 conclusive unless any reasonable adjudicator would be compelled 8 to conclude to the contrary[.]”); see also Siewe v. Gonzales , 9 480 F.3d 160, 167 (2d Cir. 2007) (“Decisions as to . . . which 10 of competing inferences to draw are entirely within the province 11 of the trier of fact.” (internal quotation marks omitted)). 12 Second, the IJ did not fail to separately analyze Zheng’s 13 explanation for filing the frivolous application as she 14 contends. The IJ separately considered Zheng’s explanation 15 “that she was spurred on . . . by the first attorney that 16 represented her”; however, the IJ rejected that explanation 17 because Zheng “copied material . . . which she knew to be false 18 in her own handwriting, and signed it[;] . . . knowingly 19 submitted letters to the court . . . that she knew to be 20 falsified[; and] . . . acknowledged that she lied under oath 21 when she testified before an asylum officer about a significant 22 element of her claim.” 235 Finally, Zheng’s challenge to the frivolousness finding on 1 the grounds that she withdrew her application is misplaced. 2 The IJ was entitled to consider Zheng’s submission of false 3 statements, even though they were later withdrawn, when she 4 determined that a frivolous application had been made. Matter 5 of Y-L- , 24 I. & N. Dec. at 155; see also Niang , 762 F.3d at 6 253-54 (upholding a frivolousness finding based on an 7 applicant’s filing of a false asylum application that was 8 withdrawn prior to merits hearing). 9

**II. Well-Founded Fear of Future Persecution**  10 Absent past persecution, an alien may establish 11 eligibility for asylum by demonstrating a well-founded fear of 12 future persecution, which is a “subjective fear that is 13 objectively reasonable.” Dong Zhong Zheng v. Mukasey , 552 F.3d 14 277, 284 (2d Cir. 2009) (internal quotation marks omitted); see 15 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b)(2); see also Y.C. 16 v. Holder , 741 F.3d 324, 332 (2d Cir. 2013) (“For an asylum 17 claim, the applicant must show a reasonable possibility of 18 future persecution.” (internal quotation marks omitted)). “An 19 asylum applicant can show a well-founded fear of future 20 persecution in two ways: (1) by demonstrating that he or she 21 ‘would be singled out individually for persecution’ if 22 returned, or (2) by proving the existence of a ‘pattern or 236 practice in [the] . . . country of nationality . . . of 1 persecution of a group of persons similarly situated to the 2 applicant’ and establishing his or he r ‘own inclusion in, and 3 identification with, such group.’” Y.C. , 741 F.3d at 332 4 (quoting 8 C.F.R. § 1208.13(b)(2)(iii)). 5 First, the agency did not err in concluding that Zheng 6 failed to show a reasonable possibility that she would be 7 singled out individually for persecution. See Jian Xing Huang 8

v. INS , 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of 9 solid support in the record,” a fear of persecution is not 10 objectively reasonable and is “speculative at best.”). 11 “Importantly, ‘to establish a well-founded fear of persecution 12 in the absence of any evidence of past persecution, an alien 13 must make some showing that authorities in his [or her] country 14 of nationality are either aware of his [or her] activities or 15 likely to become aware of his [or her] activities.’” Y.C. , 741 16 F.3d at 332 (quoting Hongsheng Leng v. Mukasey , 528 F.3d 135, 17 143 (2d Cir. 2008)). After retracting her original claim, 18 Zheng did not assert that Chinese authorities are aware of her 19 religious practice, and she testified that no one in China other 20 than her family knows that she became a Christian in the United 21 States. Further, the IJ alternatively based her determination 22 on her finding that Zheng’s testimony that she mailed religious 237 materials to China was not credible – a finding that Zheng does 1 not challenge in her brief. 2 Second, the agency did not err in concluding that Zheng 3 failed to establish a pattern or practice of persecution of 4 Christians in China. To establish a pattern or practice of 5 persecution against a particular group, an applicant must 6 demonstrate that the harm to that group is “systemic or 7 pervasive.” In re A-M- , 23 I. & N. Dec. 737, 741 (B.I.A. 2005); 8 see Mufied v. Mukasey , 508 F.3d 88, 92-93 (2d Cir. 2007) 9 (accepting the BIA’s standard as reasonable, while noting that 10 “[w]ithout further elaboration [the standard does not make 11 clear] how systemic, pervasive, or organized persecution must 12 be before the Board would recognize it as a pattern or 13 practice”). Here, the agency reasonably found that religious 14 activities are not punished or restricted in a widespread 15 pattern. See Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 16 315, 342 (2d Cir. 2006) (holding that the weight accorded to 17 an applicant’s evidence “lie[s] largely within the discretion 18 of the IJ” (internal quotation marks omitted). Given this 19 nationwide variation, the agency reasonably concluded that 20 Zheng failed to establish a pattern or practice of persecution 21 of Christians in China. See Santoso v. Holder , 580 F.3d 110, 22 112 (2d Cir. 2009) (affirming agency’s finding of no pattern 238 or practice of persecution of Catholics in Indonesia where 1 evidence showed that religious violence was not nationwide and 2 that Catholics in many parts of the country were free to practice 3 their faith). 4 Accordingly, because the agency reasonably found that 5 Zheng failed to demonstrate a well-founded fear of persecution, 6 it did not err in denying asylum or in concluding that she 7 necessarily failed to meet the higher burden required for 8 withholding of removal or her burden for CAT relief. See Lecaj 9 v. Holder , 616 F.3d 111, 119-20 (2d Cir. 2010). 10 For the foregoing reasons, the petition for review is 11 DENIED. As we have completed our rev iew, any stay of removal 12 that the Court previously granted in this petition is VACATED. 13 Any pending request for oral argument in this petition is DENIED 14 in accordance with Federal Rule of Appellate Procedure 15 34(a)(2), and Second Circuit Local Rule 34.1(b). 16

FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18