17-750 

Yu v. Sessions 

BIA 

Loprest, IJ 

A200 165 457

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 At a stated term of the United States Court of Appeals 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 6th 4 day of June, two thousand eighteen. 

5 

6 PRESENT: 

7 GUIDO CALABRESI,

8 JOSÉ A. CABRANES, 

9 RICHARD C. WESLEY,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 FENG YU, 

14 Petitioner, 

15 v. 17-750 

16 NAC 

17 JEFFERSON B. SESSIONS III, 

18 UNITED STATES ATTORNEY GENERAL, 

19 Respondent. 

20 _____________________________________ 

21 

22 FOR PETITIONER: Alexander G. Rojas, New York, NY. 

23 

24 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

25 Attorney General; Jeffrey R. 

26 Meyer, Imran R. Zaidi, Attorneys, 

27 Office of Immigration Litigation, 

28 United States Department of 

29 Justice, Washington, DC. 
2

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 Feng Yu, a native and citizen of the People’s 

6 Republic of China, seeks review of a February 17, 2017, 

7 decision of the BIA affirming a February 9, 2016, decision of 

8 an Immigration Judge (“IJ”) denying Yu’s application for 

9 asylum, withholding of removal, and relief under the 

10 Convention Against Torture (“CAT”). In re Feng Yu, No. A 200 

11 165 457 (B.I.A. Feb. 17, 2017), aff’g No. A 200 165 457

12 (Immig. Ct. N.Y. City Feb. 9, 2016). We assume the parties’ 

13 familiarity with the underlying facts and procedural history 

14 in this case. 

15 In lieu of filing a brief, the Government moves for 

16 summary denial of Yu’s petition for review. Summary denial 

17 is warranted only if a petition is frivolous, Pillay v. INS, 

18 45 F.3d 14, 17 (2d Cir. 1995), and Yu has filed his merits 

19 brief. Accordingly, we treat the Government’s motion as a 

20 response to that brief, and deny the petition. 
3

1 Under the circumstances of this case, we have reviewed 

2 both the BIA’s and IJ’s decisions “for the sake of 

3 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 

4 524, 528 (2d Cir. 2006). We review the agency’s legal 

5 conclusions de novo and its factual findings for substantial 

6 evidence. Y.C. v. Holder, 741 F.3d 325, 332 (2d Cir. 2013). 

7 “[T]he administrative findings of fact are conclusive unless 

8 any reasonable adjudicator would be compelled to conclude to 

9 the contrary.” 8 U.S.C. § 1252(b)(4)(B). 

10 Yu had the burden of proving a well-founded fear of 

11 persecution on account of either his political activism with 

12 the U.S. branch of the China Democracy Party (“CDP”) or his 

13 practice of Christianity in the United States. 8 U.S.C. 

14 §§ 1101(a)(42), 1158(b)(1)(B)(i). To do this, he was 

15 required to show that he subjectively feared persecution and 

16 that his fear was objectively reasonable. Ramsameachire v. 

17 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). The objective 

18 component can be satisfied either by establishing “a 

19 reasonable possibility that [he] would be singled out 

20 individually for persecution . . . or “a pattern or practice 

21 . . . of persecution of a group of persons similarly situated 
4

1 to the applicant . . . .” 8 C.F.R. § 1208.13(b)(2)(iii); 

2 Y.C., 741 F.3d at 332. 

3 To demonstrate that he would be individually targeted 

4 for persecution, Yu first had to show a reasonable possibility 

5 that Chinese authorities were either already aware, or likely 

6 to become aware, of his religious or pro-democracy 

7 activities. Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d 

8 Cir. 2008). The agency was permitted to discount letters 

9 from Yu’s mother and brother in China describing Chinese 

10 police visits. Y.C., 741 F.3d at 334. Absent the letters, 

11 the agency reasonably concluded that the possibility that 

12 Chinese officials would be aware of Yu’s activities based on 

13 his participation in protests or publication of online 

14 articles was too speculative to warrant relief. See id.

15 (Chinese government’s monitoring of internet postings does 

16 not mean that it “is aware of every anti-Communist or pro17 democracy piece of commentary published online.”); Jian Xing 

18 Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (absent “solid 

19 support in the record,” an applicant’s fear of future 

20 persecution is “speculative at best”). 
5

1 Regarding Yu’s pattern or practice claim, the agency 

2 reasonably concluded that he was not similarly situated to 

3 CDP members who were arrested because those members were more 

4 politically active than Yu and engaged in activities in China, 

5 whereas Yu joined the CDP in the United States. Y.C., 741 

6 F.3d at 334-37. And the agency reasonably relied on the 

7 State Department’s 2013 religious freedom report, which 

8 reflects that the Chinese government’s policies toward 

9 Christians and underground churches vary by province and does 

10 not include any reports of arrests in Yu’s home province 

11 (Jilin), to conclude that Yu did not establish a pattern or 

12 practice of persecution of similarly situated Christians. 

13 Jian Hui Shao v. Mukasey, 546 F.3d 138, 159-62, 174 (2d Cir. 

14 2008) (upholding BIA’s requirement that applicant demonstrate 

15 that officials in his local area enforce a government policy 

16 when evidence demonstrates local variations in enforcement of 

17 that policy).

18 Because Yu failed to meet his burden of proof for asylum, 

19 he necessarily failed to meet the higher burdens for 

20 withholding of removal and CAT relief. Lecaj v. Holder, 616 

21 F.3d 111, 119-20 (2d Cir. 2010). We do not address the 
6

1 timeliness of the asylum application or the agency’s firm 

2 resettlement finding because the burden determination is 

3 dispositive. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 

4 (“As a general rule courts and agencies are not required to 

5 make findings on issues the decision of which is unnecessary 

6 to the results they reach.”). 

7 Finally, we reject Yu’s due process argument. Yu 

8 contends that the IJ deprived him of due process by stating 

9 the following immediately before issuing his oral decision: 

10 “I feel that if I actually were to stretch things and grant 

11 relief, I think that the Department would have grounds for 

12 appeal and that they’d succeed. So in, other words, it 

13 wouldn’t do any good to try to push it any other way.” Taken 

14 in context, however, it is clear that the IJ’s remarks were 

15 intended to explain his decision to deny relief because Yu 

16 had not met his evidentiary burden. For instance, the IJ 

17 also stated, “I don’t think Mr. Yu’s case, the evidence 

18 presented meets his burden to demonstrate eligibility for 

19 asylum under our country’s laws. And for that reason I do 

20 feel that the application needs to be denied.” The IJ did 
7

1 not consider any improper factors or deny Yu a full and fair 

2 hearing. 

3 For the foregoing reasons, the petition for review is 

4 DENIED. As we have completed our review, the Government’s 

5 motion for summary denial is DENIED as moot. Any pending 

6 request for oral argument in this petition is DENIED in 

7 accordance with Federal Rule of Appellate Procedure 34(a)(2), 

8 and Second Circuit Local Rule 34.1(b). 

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, 

11 Clerk of Court