16-3202 Zou v. Sessions BIA Van Wyke, IJ A089 167 620 

### 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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **16 th**  **day of November, two thousand seventeen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **ROBERT D. SACK,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **JIN ZOU,** 13 Petitioner **,** 14 15 **v. 16-3202** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Zhou Wang, New York, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Julie M. Iversen, 26 Senior Litigation Counsel; Kathryn 27 M. McKinney, Attorney; Lindsay G. 28 Donahue, Law Clerk, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Jin Zou, a native and citizen of the People’s 5 Republic of China, seeks review of an August 31, 2016, decision 6 of the BIA affirming an April 23, 2015, decision of an 7 Immigration Judge (“IJ”) denying Zou’s application for asylum, 8 withholding of removal, and relief under the Convention Against 9 Torture (“CAT”). In re Jin Zou, No. A 089 167 620 (B.I.A. Aug. 10 31, 2016), aff’g No. A 089 167 620 (Immig. Ct. N.Y. City Apr. 23, 11 2015). We assume the parties’ familiarity with the underlying 12 facts and procedural history in this case. 13 In lieu of filing a brief, the Government moves for summary 14 denial of Zou’s petition for review. Summary denial is 15 warranted only if a petition is frivolous, Pillay v. INS , 45 16 F.3d 14, 17 (2d Cir. 1995), and Zou has filed his merits brief. 17 Accordingly, we treat the Government’s motion as a response to 18 that brief, and deny the petition. 19

**I. Adverse Credibility Determination**  20 Under the circumstances of this case, we have reviewed the 21 IJ’s decision as modified by the BIA and consider only whether 22 the factual findings that the BIA relied on provide substantial 233 evidence for the adverse credibility determination. See Xiu 1 Xia Lin v. Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008) 2 (substantial evidence review); Xue Hong Yang v. U.S. Dep’t of 3 Justice , 426 F.3d 520, 522 (2d Cir. 2005) (reviewing IJ’s 4 decision as modified by BIA). 5 Zou raises arguments identical to those in his brief to the 6 BIA. As a result, he challenges findings made by the IJ that 7 were not relied on by the BIA and that are no longer part of 8 the agency decision. See Xue Hong Yang , 426 F.3d at 522. In 9 addition, by failing to challenge any of the four grounds the 10 BIA relied on in upholding the adverse credibility 11 determination, he has waived any challenge to them. See Shunfu 12 Li v. Mukasey , 529 F.3d 141, 146 (2d Cir. 2008) (petitioner 13 waived challenge to grounds for adverse credibility ruling that 14 were not raised in brief); see also Yueqing Zhang v. Gonzales , 15 426 F.3d 540, 545 n.7 (2d Cir. 2005) (providing that issues not 16 raised in an opening brief are waived). Accordingly, Zou has 17 waived any challenge to the adverse credibility determination 18 and we reach the merits only as to his fear of future persecution 19 based on his practice of Christianity in the United States. 20

**II. Well-Founded Fear of Persecution**  21 The agency accepted that Zou practices Christianity in the 22 United States. To establish a well-founded fear of persecution 234 in the absence of past persecution, Zou was required to show 1 an objectively reasonable fear of future persecution. 2 Ramsameachire v. Ashcroft , 357 F.3d 169, 178 (2d Cir. 2004). 3 Because his fear would be based solely on activities in the 4 United States, Zou was required to “make some showing that 5 authorities in his country of nationality are (1) aware of his 6 activities or (2) likely to become aware of his activities.” 7 Hongsheng Leng v. Mukasey , 528 F.3d 135, 138 (2d Cir. 2008). 8 The objective component can be satisfied either (1) by 9 establishing a reasonable possibility that he “would be singled 10 out individually for persecution” or (2) by demonstrating “a 11 pattern or practice . . . of persecution of a group of persons 12 similarly situated to [him].” Hongsheng Leng , 528 F.3d 135 at 13 142 (quotation marks and citation omitted); see 8 C.F.R. 14 § 1208.13(b)(2)(iii). A pattern or practice of persecution is 15 the “systemic or pervasive” persecution of a group. In re A-M- , 16 23 I. & N. Dec. 737, 741 (B.I.A. 2005); see Mufied v. Mukasey , 17 508 F.3d 88, 92-93 (2d Cir. 2007). Given that the country 18 conditions evidence showed that only segments of the Christian 19 population are targeted for arrest and detention and the absence 20 of any reports of arrest in Zou’s home province of Fujian, the 21 agency reasonably concluded that he did not establish that the 22 Chinese government would become aware of his Christianity or 235 target him on this basis. See Shi Jie Ge v. Holder , 588 F.3d 1 90, 95-96 (2d Cir. 2009). 2

**III. Motion to Remand**  3 We review the BIA’s denial of a motion to remand for abuse 4 of discretion, and review the BIA’s conclusions regarding 5 country conditions for substantial evidence. See Li Yong Cao 6 v. U.S. Dep’t of Justice , 421 F.3d 149, 156 (2d Cir. 2005); Jian 7 Hui Shao v. Mukasey , 546 F.3d 138, 157 (2d Cir. 2008). “An abuse 8 of discretion may be found in those circumstances where the 9 Board's decision provides no rational explanation, 10 inexplicably departs from established policies

. . . is devoid 11 of any reasoning, or contains only summary or conclusory 12

statements
. . . that is to say, where the Board has acted in 13 an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t 14 of Justice , 265 F.3d 83, 93 (2d Cir. 2001) (citations omitted). 15 The BIA erred in concluding that the State Department’s 16 2014 International Religious Freedom report was available at 17 the time of Zou’s February 2015 hearing because it was not 18 published until October 2015. However, the BIA reasonably 19 concluded that the new reports would not change the outcome of 20 Zou’s case. Zou does not cite to any information in either 21 report that would alter the agency’s conclusion. The 2014 22 report does not reflect any i ncidents of arrest or harassment 236 of Christians in Zou’s home province or a significant increase 1 in the number of Christians arrested throughout China. S ee 2 Jian Hui Shao , 546 F.3d at 165 (upholding BIA’s requirement that 3 applicant demonstrate that officials in his local area enforce 4

a government policy when evidence demonstrates local variations 5 in enforcement of that policy). The second report merely 6 incorporates the first by reference and provided no independent 7 basis for remand. 8 For the foregoing reasons, the petition for review is 9 DENIED. As we have completed our review, the Government’s 10 motion for summary denial is DENIED as moot. Any pending 11 request for oral argument in this petition is DENIED in 12 accordance with Federal Rule of Appellate Procedure 34(a)(2), 13 and Second Circuit Local Rule 34.1(b). 14
FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16