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ZHENG v. BARR (2020)

United States Court of Appeals, Second Circuit.

Mengqian ZHENG, Petitioner, v. William P. BARR, United States Attorney General, Respondent.


Decided: July 14, 2020

PRESENT: DEBRA ANN LIVINGSTON, RAYMOND J. LOHIER, JR., STEVEN J. MENASHI, Circuit Judges. FOR PETITIONER: James A. Lombardi, New York, NY. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Song E. Park, Senior Litigation Counsel; Matt A. Crapo, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.


Petitioner Mengqian Zheng, a native and citizen of the People's Republic of China, seeks review of a May 29, 2018, decision of the BIA affirming a June 26, 2017, decision of an Immigration Judge (“IJ”) denying Zheng's application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mengqian Zheng, No. A XXX XX9 392 (B.I.A. May 29, 2018), aff'g No. A XXX XX9 392 (Immig. Ct. N.Y. City Jun. 26, 2017). We assume the parties’ familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed the IJ's decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Because the BIA assumed credibility, we assume credibility as to Zheng's subjective fear of future harm. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir. 2005). 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).

Zheng began practicing Christianity while in the United States and alleged a fear of persecution in China because she would continue to practice Christianity if removed. Absent past persecution, an alien may establish eligibility for asylum by demonstrating a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(2); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). To demonstrate a well-founded fear, an applicant must show either a reasonable possibility that she would be singled out for persecution or that the country of removal has a pattern or practice of persecuting similarly situated individuals. 8 C.F.R. § 1208.13(b)(2)(iii); see In re A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005) (defining pattern or practice of persecution as “systemic or pervasive” persecution); Santoso v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009) (upholding denial of pattern or practice claim where under this “systemic or pervasive” standard). “[I]n order to establish eligibility for relief based exclusively on activities undertaken after [her] arrival in the United States, an alien must make some showing that authorities in [her] country of nationality are (1) aware of [her] activities or (2) likely to become aware of [her] activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 137 (2d Cir. 2008).

Zheng does not allege that the Chinese government is aware of her religious practice, and she does not challenge the agency's ruling that she had not shown a reasonable possibility that she would be singled out for persecution. Instead, Zheng argues that there is a reasonable possibility that the Chinese government will become aware of her religious practice because she intends to attend an underground church, and that there is a reasonable possibility that she will be persecuted as a result because the government has a pattern or practice of persecuting similarly situated Christians. However, the agency reasonably concluded that Zheng failed to show a pattern or practice of persecution of Christians who attend unregistered churches in China. The State Department's 2015 International Religious Freedom Report states that there are approximately 45 million Christians practicing in unregistered churches in China and that authorities in some areas of the country allow unregistered churches to hold services “provided they remained small in scale,” although authorities in other areas target and close such churches. See China 2015 Int'l Religious Freedom Rep. at 3, 14, available at It further reports that China's State Administration for Religious Affairs policy provides that “family and friends have the right to meet at home for worship, including prayer and Bible study, without registering with the government.” Id. at 6. The other country conditions evidence Zheng submitted reflect abuses against people who are not similarly situated to Zheng—who testified that she would attend services at an unregistered church, but not that she would take a leadership role, proselytize, or engage in other activism—or concern areas of China other than Zheng's native Fujian province. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 165–66, 174 (2d Cir. 2008) (finding that the BIA does not err in requiring localized evidence of persecution when the record reflected wide variances in how policies are understood and enforced throughout China). Similarly, although Zheng alleged that she had heard of people being persecuted for their religious beliefs, she did not provide details of specific instances of persecution of individuals for attending churches in in her home province. Cf. id. at 160 (holding that “unattributed reports” of forced sterilizations absent “specificity as to number or circumstance” did not “demonstrate a reasonable possibility ․ [of] future persecution”).

Given the large number of Christians practicing in unregistered churches in China, the nationwide variation and the dearth of documented persecution of individual members of unregistered churches in Zheng's home province, the agency reasonably concluded that Zheng failed to establish a pattern or practice of persecution of similarly situated individuals. See id. at 165–66, 174; see also Santoso, 580 F.3d at 112 & n.1 (denying petition where agency considered background materials and rejected pattern or practice claim because violence was localized). Accordingly, because Zheng failed to demonstrate the well-founded fear of persecution needed for asylum, the agency did not err in finding that she failed to meet the higher standard for withholding of removal. 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.

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ZHENG v. BARR (2020)

Docket No: 18-1815

Decided: July 14, 2020

Court: United States Court of Appeals, Second Circuit.

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