Pursuant to Federal Rule of Appellate Procedure 1

43(c)(2), Attorney General Eric H. Holder Jr. is

automatically substituted for former Attorney Michael B.

Mukasey as the respondent in this case.

08-6274-ag

Li v. Holder

BIA

Weisel, IJ

A093-397-439

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 Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 8 day of February, two thousand ten. th

5

6 PRESENT:

7 JON O. NEWMAN,

8 BARRINGTON D. PARKER,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges. 

11

12 _______________________________________

13

14 HAN LI,

15 Petitioner, 

16

17 v. 08-6274-ag

18 NAC

19

20 ERIC H. HOLDER JR., UNITED STATES

21 ATTORNEY GENERAL,1

22 Respondent.

23 ______________________________________

24

25

26
2

1 FOR PETITIONER: Fuhao Yang, New York, New York.

2

3 FOR RESPONDENT: Tony West, Assistant Attorney

4 General, Civil Division; Susan

5 Houser, Senior Litigation Counsel;

6 Marion E. Guyton, Trial Attorney

7 United 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 Han Li, a native and citizen of the People’s

15 Republic of China, seeks review of a December 1, 2008 order

16 of the BIA affirming the September 5, 2007 decision of

17 Immigration Judge (“IJ”) Robert Weisel denying Li’s

18 application for asylum, withholding of removal, and relief

19 under the Convention Against Torture (“CAT”). In re Han Li,

20 No. A 093 397 439 (B.I.A. Dec. 1, 2008), aff’g No. A 093 397

21 439 (Immig. Ct. N.Y. City Sept. 5, 2007). We assume the

22 parties’ familiarity with the underlying facts and

23 procedural history in this case.

24 When the BIA does not expressly “adopt” the IJ’s

25 decision, but its brief opinion closely tracks the IJ’s

26 reasoning, the Court may consider both the IJ’s and the
3

1 BIA’s opinions for the sake of completeness. Zaman v.

2 Mukasey, 514 F.3d 233, 236 (2d Cir. 2008). We review the

3 agency’s factual findings under the substantial evidence

4 standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S.

5 Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). 

6 We review de novo questions of law and the application of

7 law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d

8 99, 110 (2d Cir. 2008).

9 I. Family Planning Claim

10 Li argues that the agency erred in concluding that she

11 failed to demonstrate her eligibility for asylum,

12 withholding of removal, and CAT relief based on the birth of

13 her children in this country. However, this argument fails

14 where we have previously reviewed the agency’s consideration

15 of similar evidence and have found no error in its

16 conclusion that such evidence was insufficient to establish

17 an objectively reasonable fear of persecution. See Jian Hui

18 Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir. 2008). 

19 Although Li submitted evidence showing that her father and a

20 neighbor were sterilized more than ten years ago, she did

21 not present evidence indicating that individuals similarly

22 situated to her – those with U.S.-born children – are
4

1 currently subject to persecution for violating the family

2 planning policy. See id. at 160.

3 II. Falun Gong Claim

4 Li also argues that the agency erred by failing to find

5 that she demonstrated a well-founded fear of persecution

6 based on her practice of Falun Gong. In support of that

7 claim, she argues that the documentary evidence indicates

8 that China has banned the practice of Falun Gong and has

9 arrested and detained Falun Gong practitioners. Li

10 correctly notes that the record indicates that Falun Gong

11 practitioners have been arrested, detained, and subject to

12 severe mistreatment. Thus, the BIA’s observation that Li is

13 not an activist, teacher, or leader in the Falun Gong

14 movement is likely an insufficient basis upon which to

15 conclude that her fear is not well-founded. However, even

16 if we were to find that the agency erred in that respect,

17 remand is not required because the agency offered a valid

18 alternative basis for its denial of relief. See Xiao Ji

19 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir.

20 2006). The BIA reasonably found that Li did not establish

21 that her practice was likely to come to the attention of

22 Chinese authorities. As we have held, “to establish a
5

1 well-founded fear of persecution in the absence of any

2 evidence of past persecution, an alien must make some

3 showing that authorities in his country of nationality are

4 either aware of his activities or likely to become aware of

5 his activities.” See Hongsheng Leng v. Mukasey, 528 F.3d

6 135, 143 (2d Cir. 2008); see also Jian Xing Huang v. INS,

7 421 F.3d 125, 128-29 (2d Cir. 2005) (holding that, absent

8 solid support in the record for the petitioner’s assertion

9 that he would be persecuted, his fear was “speculative at

10 best”). Here, the BIA did not err in concluding that Li,

11 who only began her practice of Falun Gong after entering

12 this country, did not show that Chinese authorities were

13 likely to become aware of her activities. See Hongsheng

14 Leng, 528 F.3d at 143.

15 Because Li was unable to show the objective likelihood

16 of persecution needed to make out an asylum claim, she was

17 necessarily unable to meet the higher standard required to

18 succeed on a claim for withholding of removal or CAT relief

19 where all three claims bore the same factual predicate. See

20 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Kyaw

21 Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir. 2006) (holding

22 that torture is “something more severe than the kind of

23 treatment that would suffice to prove persecution”).
6

1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any pending motion

3 for a stay of removal in this petition is DISMISSED as moot. 

4 Any pending request for oral argument in this petition is

5 DENIED in accordance with Federal Rule of Appellate

6 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

7 FOR THE COURT: 

8 Catherine O’Hagan Wolfe, Clerk

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