18-3681

Zheng v. Wilkinson

BIA

Hom, IJ

A095 518 259

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 the Second Circuit, held at the Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 1st day of March, two thousand twenty-one.

PRESENT:

PIERRE N. LEVAL,

ROSEMARY S. POOLER,

STEVEN J. MENASHI,

Circuit Judges.

_____________________________________

JINWEN ZHENG,

Petitioner,

v. 18-3681

NAC

ROBERT M. WILKINSON, ACTING 

UNITED STATES ATTORNEY GENERAL,1

Respondent.

_____________________________________

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting 

Attorney General Robert M. Wilkinson is automatically substituted as 

Respondent.
2

FOR PETITIONER: Zhen Liang Li, Esq., New York, 

NY.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting 

Assistant Attorney General; Carl 

McIntyre, Assistant Director; 

Sharon M. Clay, 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 DISMISSED in part and DENIED in remaining part.

Petitioner Jinwen Zheng, a native and citizen of the 

People’s Republic of China, seeks review of a November 14, 

2018, decision of the BIA affirming a September 29, 2017, 

decision of an Immigration Judge (“IJ”) denying cancellation 

of removal, asylum, withholding of removal, and protection 

under the Convention Against Torture (“CAT”). In re Jinwen 

Zheng, No. A 095 518 259 (B.I.A. Nov. 14, 2018), aff’g No. A

095 518 259 (Immig. Ct. N.Y. City Sept. 29, 2017). We assume 

the parties’ familiarity with the underlying facts and 

procedural history.

We have reviewed the IJ’s decision as modified and 

supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of 

Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. 
3

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Only the denial 

of cancellation and the denial of asylum and related relief 

on corroboration grounds are before us.

I. Cancellation of Removal

Our jurisdiction to review the agency’s denial of 

cancellation of removal, including the hardship 

determination, is limited to colorable constitutional claims 

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

Barco-Sandoval v. Gonzales, 516 F.3d 35, 39–40 (2d Cir. 2008). 

A nonpermanent resident, such as Zheng, may have her 

removal canceled if she establishes, among other 

requirements, that her “removal would result in exceptional 

and extremely unusual hardship” to her U.S. citizen or lawful 

permanent resident spouse, parent, or child. 8 U.S.C. 

§ 1229b(b)(1). The agency concluded that Zheng failed to

show that her removal would cause the requisite hardship to 

her U.S. citizen son. Such hardship “must be ‘substantially’ 

beyond the ordinary hardship that would be expected when a 

close family member leaves this country.” In re MonrealAguinaga, 23 I. & N. Dec. 56, 62 (BIA 2001) (quoting H.R. 

Conf. Rep. No. 104-828, at 213 (1996)). 

We dismiss Zheng’s petition as to her challenge of 
4

cancellation of removal. Although the agency may commit an 

error of law if it “totally overlook[s]”or “seriously 

mischaracterize[s]” material facts, Mendez v. Holder, 566 

F.3d 316, 323 (2d Cir. 2009), Zheng has not identified a 

colorable claim. The record reflects that the IJ and BIA 

considered her evidence. Zheng argues that the agency failed 

to consider “her husband’s lack of immigration status, the 

tender age of the children, and their health problems, as 

well as the conditions in China informing her fear of 

persecution . . . [and] the hardship effect to the qualifying 

US citizen child in term[s] of school and medical qualities 

in China and parents’ financial abilities.” But the IJ’s and 

BIA’s decisions reflect that the agency considered these 

factors. To the extent that Zheng argues that the agency put 

too little weight on certain evidence, the weight the agency 

gives to the evidence and its balancing of factors is beyond 

our jurisdiction. See Argueta v. Holder, 617 F.3d 109, 113 

(2d Cir. 2010). Accordingly, we dismiss the petition as to 

cancellation because Zheng has not raised a colorable 

question of law. See Xiao Ji Chen, 471 F.3d at 329. 
5

II. Asylum, Withholding of Removal, and CAT: Corroboration

The applicable standards of review are well established. 

See 8 U.S.C. § 1252(b)(4)(B); Chuilu Liu v. Holder, 575 F.3d 

193, 196 (2d Cir. 2009) (reviewing factual findings 

underlying burden of proof determinations under the 

substantial evidence standard); Yanqin Weng v. Holder, 562 

F.3d 510, 513 (2d Cir. 2009) (reviewing application of law to 

undisputed fact de novo).

Zheng makes no claim of past persecution. Absent past 

persecution, an applicant may establish eligibility for 

asylum by demonstrating “that [s]he has a well-founded fear 

of future persecution, which requires that the alien present 

credible testimony that [s]he subjectively fears persecution 

and establish that h[er] fear is objectively reasonable.” 

Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); 

see also 8 C.F.R. § 1208.13(b)(2). To demonstrate a wellfounded fear, an applicant must show either a reasonable 

possibility that she “would be singled out individually for 

persecution” or that the country of removal has a “pattern or 

practice” of persecuting individuals “similarly situated” to 

her. 8 C.F.R. § 1208.13(b)(2)(iii). Where, as here, an 

applicant expresses a fear based on activities undertaken 
6

solely in the United States, she “must make some showing that 

authorities in h[er] country of nationality are either aware 

of h[er] activities or likely to become aware of h[er] 

activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 

(2d Cir. 2008). 

The agency reasonably found that Zheng failed to satisfy 

her burden of proof because she provided insufficient 

evidence that the Chinese police were or would likely become 

aware of her religious practice in the United States and 

persecute her as a result. Zheng failed to submit evidence 

that Chinese authorities were aware of her religious 

activities or that she had sent her mother religious materials 

in 2012. The IJ was permitted to require additional 

corroboration because such evidence was reasonably available. 

See 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 

198–99. At the time of Zheng’s hearing in 2016, her mother 

was living in the United States as a lawful permanent 

resident, but her mother did not testify or provide a written 

statement to confirm Zheng’s allegation that Chinese

authorities had raided a religious gathering and learned that 

Zheng had sent religious materials to China. The IJ did not 

err in rejecting Zheng’s explanation that she did not think 
7

such evidence was necessary. See 8 U.S.C. § 1252(b)(4).

Moreover, even though Zheng testified that she would continue 

practicing her faith in China, she failed to present objective 

evidence that the Chinese authorities would likely become 

aware of those activities and persecute her as a result, 

particularly as she did not corroborate her mother’s alleged 

persecution. See Jian Xing Huang v. U.S. INS, 421 F.3d 125, 

129 (2d Cir. 2005) (“In the absence of solid support in the 

record . . . [an applicant’s] fear is speculative at best.”). 

Zheng does not argue that there is a pattern or practice of 

persecution of Catholics. See Yueqing Zhang v. Gonzales, 426 

F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (concluding that 

asylum applicant waives issues not raised in brief). 

In sum, the agency did not err in finding that Zheng 

failed to satisfy her burden of establishing a well-founded 

fear of future persecution because she did not submit 

available corroboration. See 8 U.S.C. § 1158(b)(1)(B)(ii); 

Chuilu Liu, 575 F.3d at 196–98. This finding is dispositive 

because a failure to meet the burden for asylum necessarily 

means that Zheng was unable to meet the higher burden for 

withholding of removal and CAT protection. See Lecaj v. 

Holder, 616 F.3d 111, 119 (2d Cir. 2010).
8

For the foregoing reasons, Zheng’s petition for review 

is DISMISSED in part and DENIED in remaining part. 

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court