16-3015 Tao v. Sessions BIA Laforest, IJ A087 601 002 

### 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 **23 rd**  **day of February, two thousand eighteen.** 4 5 **PRESENT:** 6 **REENA RAGGI,** 7 **DENNY CHIN,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **LI TAO,** 13 Petitioner **,** 14 15 **v. 16-3015** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Mike P. Gao, Flushing, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Nancy E. Friedman, 26 Senior Litigation Counsel; Sharon M. 27 Clay, Trial Attorney, Office of 28 Immigration Litigation, United 29 States Department of Justice, 30 Washington, DC. 312 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 Li Tao, a native and citizen of the People’s 5 Republic of China, seeks review of an August 9, 2016, decision 6 of the BIA affirming an April 20, 2015, decision of an 7 Immigration Judge (“IJ”) denying Tao’s application for asylum, 8 withholding of removal, and relief under the Convention Against 9 Torture (“CAT”). In re Li Tao, No. A087 601 002 (B.I.A. Aug. 10 9, 2016), aff’g No. A087 601 002 (Immig. Ct. N.Y. City April 11 20, 2015). We assume the parties’ familiarity with the 12 underlying facts and procedural history in this case. 13 Under the circumstances of this case, we have reviewed both 14 IJ’s and BIA’s opinions “for the sake of completeness.” 15 Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 16 2006). The applicable standards of review are well 17 established. 8 U.S.C. § 1252(b)(4)(B); Su Chun Hu v. Holder , 18 579 F.3d 155, 158 (2d Cir. 2009). 19 Because Tao alleged only a fear of future persecution on 20 account of her membership in the China Democracy Party (“CDP”) 21 in the United States, she had th e burden to show a well-founded 22 fear of future persecution, which is a “subjective fear that 233 is objectively reasonable.” Dong Zhong Zheng v. Mukasey , 552 1 F.3d 277, 284 (2d Cir. 2009) (internal quotation marks omitted); 2 see also 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b)(2); Y.C. 3 v. Holder , 741 F.3d 324, 332 (2d Cir. 2013) (“For an asylum 4 claim, the applicant must show a reasonable possibility of 5 future persecution.” (internal quotation marks omitted)). “An 6 asylum applicant can show a well-founded fear of future 7 persecution in two ways: (1) by demonstrating that he or she 8 ‘would be singled out individually for persecution’ if 9 returned, or (2) by proving the existence of a ‘pattern or 10 practice in [the] . . . country of nationality . . . of 11 persecution of a group of persons similarly situated to the 12 applicant’ and establishing his or he r ‘own inclusion in, and 13 identification with, such group.’” Y.C. , 741 F.3d at 332 14 (quoting 8 C.F.R. § 1208.13(b)(2)(iii)). 15 First , we conclude that the agency did not err in 16 determining that Tao failed to demonstrate an objectively 17 reasonable possibility that she would be singled out 18 individually for persecution. “[A]n alien must make some 19 showing that authorities in his or her country of nationality 20 are either aware of his or her activities or likely to become 21 aware of his or her activities.” Y.C. , 741 F.3d at 332 22 (internal citation, quotation marks, and brackets omitted). 234 Tao argues that online publication of her four pro-democracy 1 articles and photographs of protests she attended established 2 the Chinese government’s likely awareness of her U.S. political 3 activities, particularly in light of her own testimony and 4 testimony from a witness that that the government would discover 5 her activities. Although the agency found Tao and her witness 6 credible, that only satisfied the subjective prong of the test. 7 The agency then reasonably concluded that Tao’s fear of 8 persecution was speculative because it was unlikely that the 9 Chinese government would discover her four articles and protest 10 photographs. See Jian Xing Huang v. U.S INS , 421 F.3d 125, 129 11 (2d Cir. 2005) (stating that in “absence of solid support in 12 the record” a fear of persecution is not objectively reasonable 13 and is “speculative at best.”); Y.C. , 741 F.3d at 334, 336-37 14 (finding insufficient grounds for awareness based on either 15 publication of one article or applicant’s member page, name, 16 and photograph on CDP’s website). 17 Second , we conclude that the agency did not err in 18 determining that Tao failed to establish a pattern or practice 19 of persecution of similarly-situated individuals—namely, 20 low-level CDP members who joined the CDP in the United States. 21 To establish a pattern or practice of persecution of a 22 particular group, an applicant must demonstrate that the harm 235 to that group is “systemic or pervasive.” In re A-M- , 23 I. 1 & N. Dec. 737, 741 (B.I.A. 2005); see Mufied v. Mukasey , 508 2 F.3d 88, 92-93 (2d Cir. 2007). Although Tao and her witness 3 identified a few arrests of low-level CDP members who had been 4 active in the United States, the agency reasonably concluded 5 that the isolated incidents did not amount to a pattern or 6 practice. See Santoso v. Holder , 580 F.3 110, 111-12 (2d Cir. 7 2009) (finding no error in agency’s denial of pattern or 8 practice claim where persecution was “sporadic” and 9 “localized”). 10 Further, as the agency reasoned, the country conditions 11 evidence reflects that high-profile CDP leaders and recruiters 12 have been persecuted for their pro-democracy activities in 13 China, but does not identify persecution of low-level CDP 14 members, like Tao, whose activities occurred only in the United 15 States. The agency therefore did not err in concluding that 16 Tao failed to show a pattern or practice of persecution of 17 similarly-situated individuals. See Y.C. , 741 F.3d at 334-35 18 (affirming agency’s denial of pattern or practice claim by 19 low-level Chinese Alliance for Democracy member where evidence 20 showed persecution of prominent leaders of pro-democracy 21 movements outside of China and political dissidents within 22 China). As the agency concluded, Tao failed to demonstrate an 236 objectively reasonable fear of persecution. See id . Thus, 1 the agency did not err in denying asylum or in concluding that 2 Tao necessarily failed to meet the higher burdens for 3 withholding of removal and CAT relief. See Lecaj v. Holder , 4 616 F.3d 111, 119-20 (2d Cir. 2010). 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our rev iew, any stay of removal 7 that the Court previously granted in this petition is VACATED, 8 and any pending motion for a stay of removal in this petition 9 is DISMISSED as moot. Any pending request for oral argument 10 in this petition is DENIED in accordance with Federal Rule of 11 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 12 34.1(b). 13

FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15