13-3885

Li v. Holder

BIA

Poczter, IJ

A200 179 293

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,

on the 16th 4 day of April, two thousand fifteen.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 Chief Judge,

9 DENNY CHIN,

10 RAYMOND J. LOHIER, JR.,

11 Circuit Judges.

12 _____________________________________

13

14 DE HANG LI,

15 Petitioner,

16

17 v. 13-3885

18 NAC

19

20 ERIC H. HOLDER, JR., UNITED STATES 

21 ATTORNEY GENERAL,

22 Respondent.

23 _____________________________________

24 

25 FOR PETITIONER: WaiSim M. Cheung, Tsoi and

26 Associates, New York, NY.

27

28 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

29 General; Douglas E. Ginsburg,
1 Assistant Director; Erik R. Quick,

2 Trial Attorney; Office of

3 Immigration Litigation, United

4 States Department of Justice,

5 Washington, DC.

6

7 UPON DUE CONSIDERATION of this petition for review of a

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

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

10 is DENIED.

11 De Hang Li, a native and citizen of China, seeks review

12 of a September 20, 2013, order of the BIA affirming the

13 August 8, 2012, decision of an Immigration Judge (“IJ”),

14 denying his application for asylum, withholding of removal,

15 and relief under the Convention Against Torture (“CAT”). In

16 re De Hang Li, No. A200 179 293 (B.I.A. Sept. 20, 2013),

17 aff’g No. A200 179 293 (Immig. Ct. N.Y.C. Aug. 8, 2012). We

18 assume the parties’ familiarity with the underlying facts

19 and procedural history in this case.

20 Under the circumstances of this case, we have reviewed

21 the IJ’s decision as modified and supplemented by the BIA. 

22 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

23 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271

24 (2d Cir. 2005). The applicable standards of review are well

25 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

2
1 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

2 Li began practicing Falun Gong in China and asserts a

3 fear of persecution in China on account of his Falun Gong

4 activities in China and in the United States. The agency

5 found that Li failed to demonstrate past persecution because

6 he testified to only one encounter with Chinese police – a

7 warehouse raid in which he escaped – and he had no further

8 contact with police, nor was he thereafter ever arrested,

9 detained, or physically mistreated. Li’s opening brief does

10 not challenge these findings and, therefore, we address only

11 whether Li has demonstrated a well-founded fear of future

12 persecution. See Fed. R. App. P. 28(a)(8)(A); Yueqing Zhang

13 v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005). 

14 Absent past persecution, an alien may establish

15 eligibility for asylum by demonstrating a well-founded fear

16 of future persecution. 8 C.F.R. § 1208.13(b)(2). To

17 establish a well-founded fear of persecution, an applicant

18 must show that he subjectively fears persecution and that

19 his fear is objectively reasonable. Ramsameachire v.

20 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). An alien must

21 show that he will be singled out by authorities or that

22 there is a pattern or practice of persecution such that

3
1 authorities would become aware of his activities. See 8

2 C.F.R. § 1208.13(b)(2)(iii). Stated another way, “an alien

3 must make some showing that authorities in his country of

4 nationality are either aware of his activities or likely to

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

6 528 F.3d 135, 143 (2d Cir. 2008). 

7 Li did not present evidence that the Chinese government

8 has a continued interest in him because of his Falun Gong

9 activities in China. Li testified, and his father’s

10 declaration confirmed, that although the police apparently

11 came looking for him at his parents’ home on two occasions

12 following the warehouse raid, government officials never

13 again visited his parents’ home or asked his family about

14 his whereabouts after he left China in November 2010. 

15 Although Li points out that the record contains no evidence

16 that Chinese officials have elected not to punish him, he

17 bears the burden of demonstrating that Chinese officials

18 remain interested in him. See 8 U.S.C. § 1158(b)(1)(B)(i).

19 Without supporting evidence, any argument about future

20 persecution because of his activities in China is merely

21 speculative. See Jian Xing Huang v. INS, 421 F.3d 125, 129

22 (2d Cir. 2005). 

4
1 Li also conceded that Chinese officials are unaware of

2 his activities in the United States and that his future

3 persecution claim is not centered around these activities. 

4 Accordingly, the agency did not err in finding that Li

5 failed to establish a well-founded fear of being singled out

6 for persecution on account of his Falun Gong activities in

7 China or the United States. See Hongsheng Leng, 528 F.3d at

8 143. 

9 Nor did Li establish a pattern or practice of

10 persecution. An applicant need not “provide evidence that

11 there is a reasonable possibility he . . . would be singled

12 out individually for persecution if . . . [he] establishes

13 that there is a pattern or practice . . . of persecution of

14 a group of persons similarly situated to [him].” 8 C.F.R.

15 § 1208.13(b)(2)(iii). A pattern or practice of persecution

16 is one that is “systemic or pervasive.” In re A-M-, 23 I. &

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

18 The 2010 State Department report Li submitted described

19 general mistreatment of Falun Gong practitioners, noting

20 that it was difficult to confirm some aspects of reported

21 abuse and stating that in some areas neighborhood groups

22 were reportedly instructed to report on Falun Gong members. 

5
1 But this report, by itself, does not establish that Li, who

2 did not demonstrate that Chinese authorities were aware of

3 his Falun Gong practice, would be persecuted upon return to

4 China. See In re Vigil, 19 I. & N. Dec. 572, 577-78 (B.I.A.

5 1988) (dismissing appeal in part for lack of evidence that

6 others similarly situated in the United States were

7 persecuted upon return to home country); see also Xiao Ji

8 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

9 2006) (holding that weight afforded to applicant’s evidence

10 in immigration proceedings lies largely within discretion of

11 the agency).

12 Finally, the agency did not abuse its discretion in

13 denying Li’s motion to remand. The agency rejected the IJ’s

14 corroboration ruling and assumed Li’s claims regarding his

15 Falun Gong practice and protest participation to be true. 

16 Therefore, any error that the IJ committed was harmless. 

17 Additionally, the BIA determined that the evidence Li

18 submitted in support of his remand motion (which addressed

19 only his Falun Gong activities in the United States) would

20 not alter its conclusion that Chinese authorities are

21 neither aware of nor interested in punishing Li for his

22 Falun Gong activities in the United States. In light of

6
1 these rational explanations, it cannot be said that the BIA

2 abused its discretion in denying Li’s remand motion, because

3 remand would not have altered the ultimate result of the

4 proceedings. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265

5 F.3d 83, 93 (2d Cir. 2001). 

6 Because Li failed to demonstrate a well-founded fear of

7 persecution on account of his Falun Gong practice, as

8 required for asylum, he necessarily could not meet the

9 higher burden for withholding of removal and CAT relief. 

10 Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010). 

11 For the foregoing reasons, the petition for review is

12 DENIED.

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe, Clerk

15

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