17-602

Shen v. Barr

BIA

Loprest, IJ

A098 603 482

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 3rd 4 day of September, two thousand twenty.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 ROSEMARY S. POOLER,

9 DENNY CHIN,

10 Circuit Judges.

11 _____________________________________

12

13 XUEHUA SHEN, AKA CHOI SUL MAE,

14 Petitioner,

15

16 v. 17-602

17 NAC

18 WILLIAM P. BARR, UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Xuehua Shen, Pro Se, Flushing, 

24 NY.

25

26 FOR RESPONDENT: Joseph H. Hunt, Assistant 

27 Attorney General; Keith I. 

28 McManus, Assistant Director; Juria 

29 L. Jones, Trial Attorney, Office 

30 of Immigration Litigation, United 

31 States Department of Justice, 

32 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 in part, and DISMISSED in part.

5 Petitioner Xuehua Shen seeks review of a February 15,

6 2017, decision of the BIA affirming a May 23, 2016, decision 

7 of an Immigration Judge (“IJ”) denying Shen’s application for 

8 asylum, withholding of removal, and relief under the 

9 Convention Against Torture (“CAT”). In re Xuehua Shen, No. 

10 A 098 603 482 (B.I.A. Feb. 15, 2017), aff’g No. A 098 603 482

11 (Immig. Ct. N.Y. City May 23, 2016). We assume the parties’ 

12 familiarity with the underlying facts and procedural history 

13 in this case.

14 Under the circumstances of this case, we have reviewed 

15 both the IJ’s and BIA’s decisions. Wangchuck v. Dep’t of 

16 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review 

17 the agency’s factual findings for substantial evidence and 

18 its legal conclusions de novo. Y.C. v. Holder, 741 F.3d 324, 

19 332 (2d Cir. 2013).

20 Shen alleged a fear of persecution in China on account 

21 of her political activities in the United States, 

22 specifically her attendance at demonstrations and two 

23 articles she posted on the internet. She had the burden of 
3

1 proving a well-founded fear of persecution on account of her 

2 political activism, which required her to establish that her 

3 fear was objectively reasonable. See 8 U.S.C. §§ 

4 1101(a)(42), 1158(b)(1)(B)(i); Ramsameachire v. Ashcroft, 357 

5 F.3d 169, 178 (2d Cir. 2004); see also Jian Xing Huang v. 

6 U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence 

7 of solid support in the record,” an asylum applicant’s fear 

8 of persecution is “speculative at best.”). Shen could meet 

9 her burden by establishing either “a reasonable possibility

10 . . . she would be singled out individually for persecution” 

11 or “a pattern or practice . . . of persecution of a group of 

12 persons similarly situated to [her] on account of . . . 

13 political opinion.” 8 C.F.R. § 1208.13(b)(2)(iii); see also

14 Y.C., 741 F.3d at 332. Because Shen’s claim was based solely 

15 on her activities in the United States, she had to show a 

16 “reasonable possibility” that Chinese authorities were aware

17 or likely to become aware of her political activities. 

18 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).

19 We find no error in the agency’s determination that Shen 

20 failed to meet her burden. 

21 The agency reasonably declined to credit Shen’s testimony 

22 about a phone call her mother allegedly received from a 

23 Chinese official warning Shen to “be quiet.” First, Shen had 
4

1 no first-hand knowledge about the warning, and her mother was 

2 an interested witness not subject to cross-examination. See

3 Y.C., 741 F.3d at 334 (upholding agency’s determination to 

4 give “very little evidentiary weight” to unsworn letter from 

5 petitioner’s husband). Second, Shen testified that her 

6 mother sent her a letter containing this information, but she 

7 did not produce the letter. See Chuilu Liu v. Holder, 575 

8 F.3d 193, 198 n.6 (2d Cir. 2009) (“[A] failure to corroborate 

9 can suffice, without more, to support a finding that an alien 

10 has not met h[er] burden of proof.”). 

11 Absent this warning, Shen’s only evidence of the 

12 government’s awareness was her speculation that Chinese 

13 authorities must be aware of her activities because they were 

14 public. That speculation is insufficient to satisfy her 

15 burden of proof. See Y.C., 741 F.3d at 333–34, 336–37

16 (explaining that published internet article and photographs 

17 documenting petitioner’s participation in protests were 

18 insufficient evidence of awareness, even where there was 

19 evidence that the Chinese government monitors online 

20 postings); see also Jian Xing Huang, 421 F.3d at 129. Nor 

21 did the agency err in concluding that Shen failed to show a 

22 pattern or practice of persecution of similarly situated pro23 democracy activists: Shen testified that she was a low-level 
5

1 member of a pro-democracy organization in the United States, 

2 and her country conditions evidence established only that the 

3 Chinese government has detained and imprisoned high-profile 

4 political dissidents whose political activism occurred 

5 principally in China. In sum, there was nothing in the record 

6 that established that low-level activists in the United 

7 States, like Shen, face persecution in China. See Y.C., 741 

8 F.3d at 334–35 (holding that persecution of high-profile 

9 activist who headed two organizations was not evidence that 

10 an individual who participated in demonstrations in United 

11 States and published a single article would be persecuted). 

12 Because Shen did not demonstrate that she has an 

13 objectively reasonable well-founded fear of persecution, her 

14 asylum claim fails. Ramsameachire, 357 F.3d at 178. Shen 

15 was thus also unable to meet the higher standard required to 

16 succeed on a claim for withholding of removal. See Lecaj v. 

17 Holder, 616 F.3d 111, 119 (2d Cir. 2010). We dismiss the 

18 petition as to Shen’s CAT claim because it is unexhausted. 

19 See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006). 

20 For the foregoing reasons, the petition for review is 

21 DENIED in part, and DISMISSED in part. As we have completed 

22 our review, any stay of removal that the Court previously 

23 granted in this petition is VACATED, and any pending motion 
6

1 for a stay of removal in this petition is DISMISSED as moot. 

2 Any pending request for oral argument in this petition is 

3 DENIED in accordance with Federal Rule of Appellate Procedure 

4 34(a)(2), and Second Circuit Local Rule 34.1(b).

5 FOR THE COURT: 

6 Catherine O’Hagan Wolfe, 

7 Clerk of Court