17

- 602 Shen v. Barr BIA Loprest , IJ A 098 603 482 

### 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**  **ELE CTRONIC 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**  1 **for the Second Circuit, held at the Thurgood**  **Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 3**  **r d**  **da y of**  **S e**  **p t**  **e m**  **b e**  **r ,**  **two thousand t**  **w e**  **n t**  **y .**  4 5 **PRESENT:** 6 **JOSÉ A. CABRANES ,**  7 **ROSEMARY S. POOLER ,**  8 **DENNY CHIN ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **XUEHUA SHEN, AKA CHOI SUL MAE,** 13 **Petitioner ,**  14 15
**v. 17** 
**- 602**  16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES**  18 **ATTORNEY GENERAL ,**  19 **Respondent .**  20

**_____________________________________** 21 22 **FOR PETITIONER :**  Xuehua Shen , Pro Se, Flushing , 23 NY

. 24 25 **FOR RESPONDENT:** Joseph H. Hunt , Assistant 26 Attorney General ; Keith I. 27 McManus , Assistant Director; Juria 28 L. Jones , Trial Attorney, Office 29 of Immigration Litigation , United 30 States Department of Justice, 31 Washington, D C. 322 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 petitio n for review 3

is DENIED in part , and DISM ISSED in part

. 4

Petitioner Xuehua Shen seeks review of a February 15, 5

2017, decision of the BIA affirming a May 23 , 2016, decision 6
of an Immigration Judge (“IJ”) denying Shen’s application for 7
asylum, withholding of removal , and relief under the 8
Convention Against Torture (“CAT”). In re Xuehua Shen , No. 9

A 098 603 482 (B.I.A. Feb. 15, 2017 ), aff’g No. A 098 603 482 10
(Immig. Ct. N.Y. City May 23, 2016 ). We assume the parties’ 11
familiarity with the underlying facts and procedur al history 12

in this case. 13
Under the circumstances of this case, we have reviewed 14

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

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

. We review 16
the agency’s factual findings for substantial evidence and 17
its legal conclusions de novo. Y.C. v. Holder , 741 F.3d 324, 18
332 (2d Cir. 2013). 19

Shen alleged a fear of persecution in China on account 20
of her political activities in the United States, 21
specifically her attendance at demonstration s and two 22
articles she posted on the internet. She had the burden of 233 proving a well

- founded fear of persecution on account of her 1
political activism , which required her to establish that her 2
fear was obj ectively reasonable

. See 8 U.S.C. §§ 3
1101(a)(42), 1158(b)(1)(B)(i) ; Ramsameachire v. Ashcroft , 357 4
F.3d 169, 178 (2d Cir. 2004); see also Jian Xing Huang v. 5

U.S. INS , 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence 6
of solid support in the record,” an asylum applicant’s fear 7
of persecution is “speculative at best

. ”). Shen could meet 8

her burden by establishing either “a reasonable possibility 9

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

or “a pattern or practice . . . of pers ecution of a group of 11
persons similarly situated to [ her ] on account of . . . 12
political opinion.” 8 C.F.R. § 1208.13(b)(2)(iii); see also 13

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

on her activities in the United States, she had to show a 15
“reasonable possibility” that Chinese authorities were aware 16
or likely to become aware of her political activities

. 17
Hongsheng Leng v. Mukasey , 528 F.3d 135, 143 (2d Cir. 2008). 18
We find no error in the agency’s determination that Shen 19

failed to meet her burden

. 20
The agency reasonably declined to credit Shen’s testimony 21

about a phone call her mother allegedly received from a 22
Chinese official warning Shen to “be quiet

. ” First, She n had 234 no first

- hand knowledge about the warning, and her mother was 1
an interested witness not subject to cross

- examination

. See 2

Y.C. , 741 F.3d at 334 (upholding agency’s determination to 3
give “very little evidentiary weight” to unsworn letter from 4
petitioner’s husband). Second , Shen testified that her 5
mother sent her a letter containing this information, but she 6
did not produce the letter

. See Chuilu Liu v. Holder , 575 7

F .3d 193, 198 n.6 (2d Cir. 2009) (“[A] failure to corroborate 8
can suffice, without more, to support a finding that an alien 9
has not met h[er] burden of proof

. ”). 10

Absent th is warning, Shen’s only evidence of the 11

government’s awareness was her speculation t hat Chinese 12
authorities must be aware of her activities because they were 13
public. That speculation is insufficient to satisfy her 14
burden of proof. See Y.C. , 741 F.3d at 333

– 34 , 336

– 37 15

( explaining that published internet article and photographs 16
documenting petitioner’s participation in protests were 17
insufficient evidence of awareness, even where there wa s 18
evidence that the Chinese government monitors online 19
postings ) ; see also Jian Xing H uang , 421 F.3d at 129

. Nor 20
did the agency err in concluding that Shen failed to show a 21
pattern or practice of persecution of similarly situated pro
22
democracy activists : Shen testified that she was a low

- level 235 member of a pro
- democracy organization in the United States, 1

and her country conditions evidence established only that the 2
Chinese government has detained and imprisoned high

- profile 3
political dissiden ts whose political activism occurred 4
principally in China. In sum, there was not hing in the record 5

that established that low

- level activists in the United 6
States, like Shen, face persecution in China. See Y.C. , 741 7

F.3d at 334

– 35 (holding that persecution of high

- profile 8
activist who headed two organizations was not evidence that 9
an individual who participated in demonstrations in United 10
States and published a single article would be persecuted)

. 11

Because Shen did not demonstrate that she has an 12
objectively reasonable well

- founded fear of persecution, her 13
asylum claim fails. R amsameachire , 357 F.3d at 178

. Shen 14

was thus also unable to meet the higher standard required to 15
succeed on a claim for withholding of removal. See Lecaj v. 16

Holder , 616 F.3d 111, 119 (2d Cir. 2010). We dismiss the 17
petition as to Shen’s CAT claim because it is unexhausted

. 18

S ee Karaj v. Gonzales , 462 F.3d 113, 119 (2d Cir. 2006). 19
For the foregoing reasons, the petition for review is 20

DENIED in part, and DISMISSED in part . As we have completed 21
our review, any stay of removal that the Court previo usly 22
granted in this petition is VACATED, and any pending motion 236 for a stay of removal in this petition is DISMISSED as moot. 1
Any pending request for oral argument in this petition is 2
DENIED in accordance with Federal Rule of Appellate Procedure 3

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

FOR THE COURT: 5 Catherine O ’ Hagan Wolfe, 6 Clerk of Court 7