10-2498-ag Yang v. Holder BIA Abrams, IJ A078 746 807 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CI** **TATION 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 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 22 ND** **day of June, two thousand eleven.** 4 5 **PRESENT:** 6 **ROGER J. MINER,** 7 **REENA RAGGI,** 8 **RICHARD C. WESLEY,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **YOU HAO YANG,** 13 Petitioner**,** 14 15 **v. 10-2498-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Gary J. Yerman, New York, New York.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Jennifer Levings, Senior** 26 **Litigation Counsel; Tim Ramnitz,** 27 **Attorney, Office of Immigration** 28 **Litigation, Civil Division, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 312 UPON DUE CONSIDERATION of this petition for review of a 1 decision of the Board of Immigration Appeals (“BIA”), it is 2 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 3 review is DENIED. 4 Petitioner You Hao Yang, a native and citizen of the 5 People’s Republic of China, seeks review of a June 1, 2010 6 order of the BIA affirming the June 27, 2008 decision of 7 Immigration Judge (“IJ”) Steven R. Abrams, denying Yang’s 8 application for asylum, withholding of removal, and relief 9 under the Convention Against Torture (“CAT”). In re You Hao 10 Yang, No. A078 746 807 (B.I.A. June 1, 2010), aff’gNo. A078 11 746 807 (Immigr. Ct. N.Y. City June 27, 2008). We assume 12 the parties’ familiarity with the underlying facts and 13 procedural history of the case. 14 Under the circumstances of this case, we review only 15 the BIA’s decision. See Yan Chen v. Gonzales , 417 F.3d 268, 16 271 (2d Cir. 2005). The applicable standards of review are 17 well-established. See8 U.S.C. § 1252(b)(4)(B) (2006); 18 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 19 **I. Past Persecution** 20 The BIA reasonably concluded that Yang failed to 21 establish his eligibility for relief. Although Yang asserts 22 that the BIA erroneously concluded that the harm that his 233 mother suffered did not rise to the level of persecution, 1 Yang has not alleged that he was harmed or threatened as a 2 result of his Christian religion. To the extent Yang argues 3 that he suffered past persecution based on the harm his 4 mother suffered, “an asylum applicant cannot claim past 5 persecution based solely on harm that was inflicted on a 6 family member on account of that family member’s political 7 opinion or other protected characteristic.” Tao Jiang v. 8 Gonzales, 500 F.3d 137, 141 (2d Cir. 2007); see also Melgar 9 de Torres v. Reno,191 F.3d 307, 313 n.2 (2d Cir. 1999). 10 Although in rare cases it may be possible to establish 11 asylum eligibility based on harm that an applicant suffered 12 only indirectly or that was directed at an applicant’s 13 relatives, see, e.g., Jorge-Tzoc v. Gonzales , 435 F.3d 150 14 (2d Cir. 2007) (per curiam) (holding that the asylum 15 applicant may have experienced persecution even though he 16 was not present at, or directly victimized by, a massacre in 17 his village based on a combination of factors, including 18 suffering extensive physical and emotional consequences as a 19 result of the incident), Yang has not claimed to have 20 suffered any consequences from his mother’s alleged 21 persecution. 22

**II. Well-Founded Fear of Future Persecution**  234 The BIA reasonably concluded that Yang failed to 1 demonstrate an objectively reasonable fear of future 2 persecution based on his Christian religion. See 3 Ramsameachire v. Ashcroft , 357 F.3d 169, 178 (2d Cir. 2004) 4 (holding that absent past persecution, an applicant can 5 demonstrate eligibility for asylum based on a well-founded 6 fear of future persecution by demonstrating that he 7 subjectively fears persecution and that this fear is 8 objectively reasonable). The BIA did not err in considering 9 that Yang did not claim that others from his church in China 10 were persecuted. See Matter of Acosta , 19 I. & N. Dec. 211, 11 222 (B.I.A. 1985) (holding that the BIA has defined 12 persecution as a “threat to the life or freedom of, or the 13 infliction of suffering or harm upon, those who differ in a 14 way regarded as offensive”), overruled, in part, on other 15 grounds,INS v. Cardoza-Fonseca , 480 U.S. 421 (1987); see 16 also Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 17 340–41 (2d Cir. 2006) (holding that to constitute 18 persecution, the harm must be sufficiently severe, rising 19 above “mere harassment”). As Yang does not point to 20 anything in the record to support his claim that he and his 21 fellow church members were unable to practice their 22 religion, despite the officials having destroyed the church 235 that they were in the process of building, or that his 1 fellow church members suffered any other harm, the BIA’s 2 finding was reasonable. 3 Additionally, there is no merit to Yang’s contention 4 that the BIA failed either to consider all of the evidence 5 or sufficiently explain why it did not credit his testimony 6 that Chinese authorities were aware that he was Christian or 7 involved in building an underground church and that he would 8 evangelize if he returned to China. See Jian Hui Shao v. 9 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (holding that the 10 agency is not required to “expressly parse or refute on the 11 record each individual argument or piece of evidence offered 12 by the petitioner” (internal quotation marks omitted)); see 13 also Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 14 336 n.17 (2d Cir. 2006) (presuming that the agency “has 15 taken into account all of the evidence before [it], unless 16 the record compellingly suggests otherwise”). Although Yang 17 argues that the BIA did not review the State Department 18 Reports in their entirety, the BIA specifically acknowledged 19 that the reports indicate restraints on the practice of 20 religion in China, but the BIA noted that the reports also 21 provide that the authorities often ignore small house 22 churches, such as the one to which Yang belonged. Yang 236 cites a portion of the 2007 International Religious Freedom 1 Report, which he claims the BIA ignored and which indicates 2 that local officials interfered with house church meetings. 3 However, the report also indicates that “[t]reatment of 4 unregistered groups varied regionally,” that only some 5 groups were harassed, and that it was primarily church 6 leaders who were subject to harsher treatment. Moreover, 7 the report does not include any information regarding house 8 churches in Yang’s province of Fujian. 9 With regard to the BIA’s finding that there was a lack 10 of evidence that Yang was known to the police, Yang stated 11 only that he believed that Chinese authorities were aware of 12 his past Christian activities, and he did not, and does not 13 now, point to any evidence in support of that claim. 14 Moreover, Yang testified that he would not be arrested 15 immediately if he were sent back to China because he was not 16 a fugitive. The BIA also reasonably concluded that there 17 was no reason to believe that Yang would evangelize if he 18 returned to China because the record shows that Yang did not 19 preach or evangelize in the United States, and he did not 20 regularly evangelize while he was in China.See Jian Xing 21 Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per curiam) 22 (holding that, absent solid support in the record for the 237 petitioner’s assertion that he would be subjected to 1 persecution, his fear was “speculative at best”). Because 2 the BIA reasonably concluded that there was no basis to 3 conclude that he would evangelize, Yang’s reliance on any 4 harm suffered by his mother for her evangelical activities 5 is not evidence that he has an objectively reasonable fear 6 of persecution. 7 Lastly, the BIA did not apply an erroneously high 8 standard of proof by requiring Yang to demonstrate that the 9 Chinese authorities were aware that he was Christian. Yang 10 mischaracterizes the BIA’s decision. The BIA found not only 11 that there was no evidence that Chinese authorities were 12 aware of who he was but also that there was no evidence that 13 Chinese authorities would become aware of his activities 14 when he returned to China because there was no reason to 15 believe that he would evangelize in China, fellow members of 16 his church in China had not been persecuted, and his mother 17 had not been arrested again. Since the BIA did not apply an 18 improper standard of proof to Yang’s claim of a well-founded 19 fear of persecution based on his Christian beliefs, Yang 20 fails to establish that the BIA erred in concluding that he 21 did not meet his burden of establishing that he had an 22 objectively reasonable fear of persecution. See 238 Ramsameachire , 357 F.3d at 178. 1 Accordingly, as Yang is unable to establish the 2 objective likelihood of persecution needed to make out an 3 asylum claim based on his Christian beliefs, he is 4 necessarily unable to meet the higher standard required to 5 succeed on his claims for withholding of removal and CAT 6 relief, as all three claims rest on the same factual 7 predicate. See Paul v. Gonzales, 444 F.3d 148, 155–56 (2d 8 Cir. 2006)

. 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our review, any stay of 11 removal that the Court previously granted in this petition 12 is VACATED, and any pending motion for a stay of removal in 13 this petition is DISMISSED as moot. Any pending request for 14 oral argument in this petition is DENIED in accordance with 15 Federal Rule of Appellate Procedure 34(a)(2), and Second 16 Circuit Local Rule 34.1(b). 17

FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20 21 22