13-4346

Shi v. Lynch

BIA

Hom, IJ

A200 751 372

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 25th 4 day of June, two thousand fifteen.

5

6 PRESENT:

7 DENNIS JACOBS,

8 PETER W. HALL,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _____________________________________

12

13 HUIXIN SHI,

14 Petitioner, 

15

16 v. 13-4346

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES 

19 ATTORNEY GENERAL, 

Respondent.* 20

21 _____________________________________

22

23

24

25 FOR PETITIONER: Gary J. Yerman, New York, NY.

*Pursuant to Federal Rule of Appellate Procedure

43(c)(2), Attorney General Loretta E. Lynch is automatically

substituted for former Attorney General Eric H. Holder, Jr.
1

2 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

3 General; Douglas E. Ginsburg,

4 Assistant Director; John M. McAdams,

5 Jr., Trial Attorney, Office of

6 Immigration Litigation, United

7 States Department of Justice,

8 Washington, D.C.

9

10 UPON DUE CONSIDERATION of this petition for review of a

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

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

13 is DENIED.

14 Petitioner Huixin Shi, a native and citizen of China,

15 seeks review of an October 31, 2013, order of the BIA,

16 affirming the July 9, 2012, decision of an Immigration Judge

17 (“IJ”), denying asylum, withholding of removal, and relief

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

19 Shi, No. A200 751 372 (B.I.A. Oct. 31, 2013), aff’g No. A200

20 751 372 (Immig. Ct. New York City July 9, 2012). We assume

21 the parties’ familiarity with the underlying facts and

22 procedural history in this case. 

23 Under the circumstances of this case, we review the

24 decisions of both the IJ and the BIA “for the sake of

25 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448

26 F.3d 524, 528 (2d Cir. 2006). The applicable standards of

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2
1 review are well established. See 8 U.S.C. § 1252(b)(4)(B);

2 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

3 I. Past Persecution

4 The BIA has defined persecution as “a threat to the

5 life or freedom of, or the infliction of suffering or harm

6 upon, those who differ in a way regarded as offensive.” In

7 re Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985),

8 overruled, in part, on other grounds, by INS v.

9 Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili v.

10 U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006). A

11 past persecution finding may be based on harm other than

12 threats to life or freedom, including “non-life-threatening

13 violence and physical abuse,” Beskovic v. Gonzales, 467 F.3d

14 223, 226 n.3 (2d Cir. 2006), but the harm must be

15 sufficiently severe to rise above “mere harassment,”

16 Ivanishvili, 433 F.3d at 341. “[T]he difference between

17 harassment and persecution is necessarily one of degree that

18 must be decided on a case-by-case basis.” Id. 

19 The agency reasonably determined that Shi’s past harm

20 did not rise to the level of persecution. Shi was not

21 physically mistreated during her detention, and was

22 permitted to continue studies at her government sponsored

3
1 college. The agency also reasonably concluded that Shi did

2 not suffer economic persecution because she did not provide

3 evidence of her financial situation at the time she was

4 fined, or allege that she suffered any economic disadvantage

5 as a result of the fine, as required. See Guan Shan Liao v.

6 U.S. Dep’t of Justice, 293 F.3d 61, 67, 70 (2d Cir. 2002);

7 accord In re T-Z-, 24 I. & N. Dec. 163, 170-75 (B.I.A.

8 2007).

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

12 of future persecution. 8 C.F.R. § 1208.13(b)(2). “An

13 asylum applicant can show a well-founded fear of future

14 persecution in two ways: (1) by demonstrating that he or she

15 ‘would be singled out individually for persecution’ if

16 returned, or (2) by proving the existence of a ‘pattern or

17 practice in [the] . . . country of nationality . . . of

18 persecution of a group of persons similarly situated to the

19 applicant[.]’” Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir.

20 2013) (quoting 8 C.F.R. § 1208.13(b)(2)(iii)). 

21 The agency did not err in finding that Shi failed to

22 show she would be singled out individually for persecution. 

4
1 See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)

2 (observing that, absent “solid support in the record,” a

3 fear of persecution is “speculative at best”). The agency

4 reasonably found that the country conditions, which

5 reflected problems for religious leaders and large

6 underground church congregations, did not support a

7 well-founded fear of persecution for Shi because she was not

8 a religious leader and attended a small underground church. 

9 The agency also reasonably observed that the 2011 ChinaAid

10 Report documented only one instance of a raid on a house

11 church in Shi’s home Province. See Jian Hui Shao v.

12 Mukasey, 546 F.3d 138, 149-50, 159-60, 163-65 (2d Cir.

13 2008). Though Shi contends that the agency selectively

14 cherry picked evidence to support its burden finding, the

15 task of resolving conflicts in the record evidence lies

16 “largely within the discretion of the agency,” id. at 171,

17 and the record does not compellingly suggest that any

18 material evidence was ignored, see Xiao Ji Chen v. U.S.

19 Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006).

20 The agency also did not err in finding that Shi failed

21 to establish a pattern or practice of persecution of

22 underground church members in China. To establish a pattern

23 or practice of persecution against a particular group, a

5
1 petitioner must demonstrate that the harm to that group is

2 “systemic or pervasive.” In re A-M-, 23 I. & N. Dec. 737,

3 741 (B.I.A. 2005); Mufied v. Mukasey, 508 F.3d 88, 92-93 (2d

4 Cir. 2007). Here, the country conditions evidence reflected

5 variation in the treatment of house church members in China. 

6 Moreover, the agency reasonably determined that Shi had

7 failed to establish a substantial risk of persecution in her

8 locality. The agency therefore did not err in finding that

9 Shi failed to establish a pattern or practice of persecution

10 of underground church members in China. 

11 Because the agency did not err in finding that Shi

12 failed to demonstrate a well-founded fear of persecution, it

13 also did not err in finding that she failed to meet the

14 higher burden required for withholding of removal or CAT

15 relief. See Paul v. Gonzales, 444 F.3d 148, 155-57 (2d Cir.

16 2006); Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).

17 For the foregoing reasons, the petition for review is

18 DENIED. As we have completed our review, any stay of

19 removal that the Court previously granted in this petition

20 is VACATED, and any pending motion for a stay of removal in

21 this petition is DISMISSED as moot. Any pending request for

22 oral argument in this petition is DENIED in accordance with

23

6
1 Federal Rule of Appellate Procedure 34(a)(2), and Second

2 Circuit Local Rule 34.1(b).

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

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