15-3314

Zheng v. Lynch

BIA

Hom, IJ

A205 918 223

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.

1

2 At a stated term of the United States Court of Appeals

3 for the Second Circuit, held at the Thurgood Marshall United

4 States Courthouse, 40 Foley Square, in the City of New York,

on the 2nd 5 day of December, two thousand sixteen.

6

7 PRESENT:

8 JOSÉ A. CABRANES,

9 RAYMOND J. LOHIER, JR.,

10 SUSAN L. CARNEY,

11 Circuit Judges.

12 _____________________________________

13

14 QING ZHENG,

15 Petitioner,

16

17 v. 15-3314

18 NAC

19 LORETTA E. LYNCH, UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Henry Zhang, New York, N.Y.

25

26 FOR RESPONDENT: Benjamin C. Mizer, Principal

27 Deputy Assistant Attorney General;

28 Mary Jane Candaux, Assistant

29 Director; Jeremy M. Bylund, Trial

30 Attorney, Office of Immigration

31 Litigation, United States

32 Department of Justice, Washington,

33 D.C.

34
1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Petitioner Qing Zheng, a native and citizen of the

6 People’s Republic of China, seeks review of a September 17,

7 2015 decision of the BIA affirming a December 4, 2013

8 decision of an Immigration Judge (“IJ”) denying Zheng’s

9 application for asylum, withholding of removal, and relief

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

11 Zheng, No. A205 918 223 (B.I.A. Sept. 17, 2015), aff’g No.

12 A205 918 223 (Immig. Ct. N.Y. City Dec. 4, 2013). We assume

13 the parties’ familiarity with the underlying facts and

14 procedural history in this case.

15 We have reviewed the IJ’s decision as modified by the

16 BIA, i.e., minus the ground that the BIA declined to reach

17 (the IJ’s adverse credibility determination). See Xue Hong

18 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

19 2005). The applicable standards of review are well

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

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

22 Past persecution can be established by harm other than

23 threats to life or freedom, including non-life-threatening

2
1 violence and physical abuse, Beskovic v. Gonzales, 467 F.3d

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

3 sufficiently severe, rising above “mere harassment,”

4 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

5 Cir. 2006). The agency “must . . . be keenly sensitive to

6 the fact that a ‘minor beating’ or, for that manner, any

7 physical degradation designed to cause pain, humiliation, or

8 other suffering, may rise to the level of persecution if it

9 occurred in the context of an arrest or detention on the

10 basis of a protected ground.” Beskovic, 467 F.3d at 227. 

11 However, “a beating that occurs within the context of an

12 arrest of detention [does not] constitute[] persecution per

13 se.” Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir.

14 2011). “[P]ersecution is ‘an extreme concept that does not

15 include every sort of treatment our society regards as

16 offensive.’” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d

17 Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,

18 416 F.3d 192, 198 (2d Cir. 2005)).

19 In this case, the IJ acknowledged that a minor beating

20 may rise to the level of persecution if it occurs in the

21 context of an arrest or detention. The IJ concluded that,

22 although Zheng was beaten while detained, she did not

23 satisfy her burden of proof because she failed to provide

3
1 details of any specific injury suffered and she admitted

2 that she did not require medical treatment as a result. 

3 Therefore, the IJ did not err in concluding that she failed

4 to demonstrate that they rose to the level of persecution. 

5 See Mei Fun Wong, 633 F.3d at 72; cf. Jian Qiu Liu, 632 F.3d

6 at 822 (“[W]e find no error in the BIA’s conclusion that Liu

7 failed to establish persecution because substantial evidence

8 supports the BIA’s finding that, prior to his arrest and

9 detention by local police, he suffered only minor bruising

10 from an altercation with family planning officials, which

11 required no formal medical attention and had no lasting

12 physical effect”).

13 Given Zheng’s failure to provide sufficient details,

14 the agency did not err in relying further on her failure to

15 even attempt to obtain admittedly available evidence to

16 corroborate her detention. See 8 U.S.C. § 1158(b)(1)(B)(i)

17 (“The testimony of the applicant may be sufficient to

18 sustain the applicant’s burden without corroboration, but

19 only if the applicant satisfies the trier of fact that the

20 applicant’s testimony is credible, is persuasive, and refers

21 to specific facts sufficient to demonstrate that the

22 applicant is a refugee.”); see also Chuilu Liu v. Holder,

23 575 F.3d 193, 196-98 (2d Cir. 2009). For these reasons, the

4
1 agency did not err in concluding that Zheng failed to

2 satisfy her burden of demonstrating past persecution. 

3 Absent past persecution, an applicant may establish

4 eligibility for asylum by demonstrating a well-founded fear

5 of future persecution, 8 C.F.R. § 1208.13(b)(2), which must

6 be both subjectively credible and objectively reasonable,

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

8 To establish a well-founded fear, an applicant must show

9 either a reasonable possibility that she would be singled

10 out for persecution or that the country of removal has a

11 pattern or practice of persecuting individuals similarly

12 situated to her. 8 C.F.R. § 1208.13(b)(2)(iii). 

13 The agency did not err in finding that Zheng failed to

14 establish a well-founded fear of persecution on account of

15 her religion. She failed to submit reasonably available

16 evidence to corroborate her continued religious practice in

17 the United States. Furthermore, the country conditions

18 evidence in the record established that tens of millions of

19 Christians practice in unregistered churches in China and

20 that such practice was tolerated without interference in

21 some areas. The country conditions evidence did not discuss

22 any incidents of persecution in Zheng’s home province. Cf.

23 Jian Hui Shao v. Mukasey, 546 F.3d 138, 142, 149, 169 (2d

5
1 Cir. 2008) (finding no error in BIA’s requirement that

2 applicant demonstrate that officials in his or her local

3 area enforce a government policy in a manner that would give

4 rise to a well-founded fear of persecution when the country

5 conditions evidence demonstrates local variations in the

6 enforcement of that policy). 

7 Accordingly, because Zheng failed to demonstrate past

8 persecution or a well-founded fear of persecution, the

9 agency did not err in denying asylum or withholding of

10 removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

11 2006). 

12 For the foregoing reasons, the petition for review is

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

14 removal that the Court previously granted in this petition

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

16 this petition is DENIED as moot. Any pending request for

17 oral argument in this petition is DENIED in accordance with

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

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

22

6