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 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARYO RDER 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 25 262 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 1 0 UPON DUE CONSIDERATION of this petition for review of a 1 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 1 3 is DENIED. 1 4 Petitioner Han Li, a native and citizen of the People’s 1 5 Republic of China, seeks review of a December 1, 2008 order 1 6 of the BIA affirming the September 5, 2007 decision of 1 7 Immigration Judge (“IJ”) Robert Weisel denying Li’s 1 8 application for asylum, withholding of removal, and relief 1 9 under the Convention Against Torture (“CAT”). In re Han Li, 2 0 No. A 093 397 439 (B.I.A. Dec. 1, 2008), aff’g No. A 093 397 2 1 439 (Immig. Ct. N.Y. City Sept. 5, 2007). We assume the 2 2 parties’ familiarity with the underlying facts and 2 3 procedural history in this case. 2 4 When the BIA does not expressly “adopt” the IJ’s 2 5 decision, but its brief opinion closely tracks the IJ’s 2 6 reasoning, the Court may consider both the IJ’s and the3 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 1 0 Li argues that the agency erred in concluding that she 1 1 failed to demonstrate her eligibility for asylum, 1 2 withholding of removal, and CAT relief based on the birth of 1 3 her children in this country. However, this argument fails 1 4 where we have previously reviewed the agency’s consideration 1 5 of similar evidence and have found no error in its 1 6 conclusion that such evidence was insufficient to establish 1 7 an objectively reasonable fear of persecution. See Jian Hui 1 8 Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir. 2008). 1 9 Although Li submitted evidence showing that her father and a 2 0 neighbor were sterilized more than ten years ago, she did 2 1 not present evidence indicating that individuals similarly 2 2 situated to her – those with U.S.-born children – are4 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 1 0 correctly notes that the record indicates that Falun Gong 1 1 practitioners have been arrested, detained, and subject to 1 2 severe mistreatment. Thus, the BIA’s observation that Li is 1 3 not an activist, teacher, or leader in the Falun Gong 1 4 movement is likely an insufficient basis upon which to 1 5 conclude that her fear is not well-founded. However, even 1 6 if we were to find that the agency erred in that respect, 1 7 remand is not required because the agency offered a valid 1 8 alternative basis for its denial of relief. See Xiao Ji 1 9 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir. 2 0 2006). The BIA reasonably found that Li did not establish 2 1 that her practice was likely to come to the attention of 2 2 Chinese authorities. As we have held, “to establish a5 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 1 0 best”). Here, the BIA did not err in concluding that Li, 1 1 who only began her practice of Falun Gong after entering 1 2 this country, did not show that Chinese authorities were 1 3 likely to become aware of her activities. See Hongsheng 1 4 Leng, 528 F.3d at 143. 1 5 Because Li was unable to show the objective likelihood 1 6 of persecution needed to make out an asylum claim, she was 1 7 necessarily unable to meet the higher standard required to 1 8 succeed on a claim for withholding of removal or CAT relief 1 9 where all three claims bore the same factual predicate. See 2 0 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Kyaw 2 1 Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir. 2006) (holding 2 2 that torture is “something more severe than the kind of 2 3 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 9 10 11