17-3960 

Gao v. Barr 

BIA 

Poczter, IJ 

A097 814 028

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 the Second Circuit, held at the Thurgood Marshall 

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

New York, on the 27th day of January, two thousand twenty. 

PRESENT: 

ROBERT A. KATZMANN, 

Chief Judge,

JON O. NEWMAN, 

SUSAN L. CARNEY,

Circuit Judges. 

_____________________________________ 

TONG GAO, 

 Petitioner, 

v. 17-3960 

 NAC 

WILLIAM P. BARR, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Gary J. Yerman, New York, NY. 

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

General; Anthony P. Nicastro, 

Assistant Director; Vanessa M. 

Otero, Trial Attorney, Office of 
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Immigration Litigation, United 

States Department of Justice, 

Washington, DC. 

UPON DUE CONSIDERATION of this petition for review of a 

Board of Immigration Appeals (“BIA”) decision, it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is DENIED. 

 Petitioner Tong Gao, a native and citizen of the People’s 

Republic of China, seeks review of a November 13, 2017, 

decision of the BIA affirming a February 2, 2017, decision of 

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

asylum, withholding of removal, and relief under the 

Convention Against Torture (“CAT”). In re Tong Gao, No. A

097 814 028 (B.I.A. Nov. 13, 2017), aff’g No. A 097 814 028

(Immig. Ct. N.Y. City Feb. 2, 2017). We assume the parties’ 

familiarity with the underlying facts and procedural history 

in this case. 

 We have reviewed both the IJ’s and the BIA’s opinions 

“for the sake of completeness.” Wangchuck v. Dep’t of 

Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The 

applicable standards of review are well established. See

8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 

510, 513 (2d Cir. 2009). The agency did not err in concluding 
3

that Gao failed to satisfy his burden of proving a wellfounded fear of future persecution in China on account of his 

practice of Christianity in the United States. 

 Absent past persecution, an alien may establish 

eligibility for asylum by demonstrating a well-founded fear 

of future persecution. See 8 C.F.R. § 1208.13(b)(2);

Hongsheng Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir. 2008). 

To do so, an applicant must show either a reasonable 

possibility that he would be singled out for persecution or 

that the country of removal has a pattern or practice of 

persecuting similarly situated individuals. See 8 C.F.R. 

§ 1208.13(b)(2)(iii); Hongsheng Leng, 528 F.3d at 142. When 

an alien seeks to establish eligibility for relief based 

solely on activities commenced in the United States, he “must 

make some showing that authorities in his country of 

nationality are either aware of his activities or likely to 

become aware of his activities.” Hongsheng Leng, 528 F.3d 

at 143. 

The agency did not err in determining that Gao did not 

establish that he would be singled out for persecution upon 

return to China. Gao argued that he would be singled out for 

proselytizing because of two incidents, that the police 
4

searched for one of his friends for attending a family church 

in 2007 and later arrested his sister-in-law during a house 

church gathering in in 2014. However, his argument is 

speculative. Neither Gao’s friend nor his sister-in-law 

described harm sufficiently severe to constitute persecution. 

See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 

(2d Cir. 2006) (harm must rise above “mere harassment”). 

Neither described being apprehended for proselytizing, as Gao 

intends to do. Nor did Gao state whether he planned to attend 

his sister-in-law’s house church. Moreover, the incident 

involving Gao’s friend occurred approximately ten years prior 

to Gao’s merits hearing. These two incidents years apart do 

not establish that Gao’s fear of persecution is well founded. 

 The agency also did not err in finding that Gao failed 

to establish a pattern or practice of persecution of similarly 

situated Christians. The country conditions evidence 

reflects that there are tens of millions of Christians in 

China, more than 40 million of whom practice outside of state 

sanctioned churches and that the authorities’ treatment of 

unregistered groups varies across the country. And the 

evidence describes few incidents of persecution in Gao’s home 

province of Fujian, the most recent of which was in 2010. 
5

This evidence describing varying levels of mistreatment with 

little documentation specific to Gao’s home province is not 

sufficient to establish a pattern or practice of persecution. 

See In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005) 

(declining to find a pattern or practice of persecution when 

the threat of harm was not “so systemic or pervasive as to 

amount to a pattern or practice of persecution”). 

 Accordingly, because the agency reasonably found that 

Gao failed to demonstrate a well-founded fear of persecution, 

it did not err in also denying withholding of removal and CAT 

relief, as those forms of relief require a greater likelihood 

of harm. See Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 

2010). 

For the foregoing reasons, the petition for review is 

DENIED. All pending motions and applications are DENIED and 

stays VACATED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk