SHEN v. BARR (2020)

SUMMARY ORDER

Petitioner Xuehua Shen seeks review of a February 15, 2017, decision of the BIA affirming a May 23, 2016, decision of an Immigration Judge (“IJ”) denying Shen's application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xuehua Shen, No. A 098 603 482 (B.I.A. Feb. 15, 2017), aff'g No. A 098 603 482 (Immig. Ct. N.Y. City May 23, 2016). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we have reviewed both the IJ's and BIA's decisions. Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the agency's factual findings for substantial evidence and its legal conclusions de novo. Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013).

Shen alleged a fear of persecution in China on account of her political activities in the United States, specifically her attendance at demonstrations and two articles she posted on the internet. She had the burden of proving a well-founded fear of persecution on account of her political activism, which required her to establish that her fear was objectively reasonable. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); see also Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid support in the record,” an asylum applicant's fear of persecution is “speculative at best.”). Shen could meet her burden by establishing either “a reasonable possibility ․ she would be singled out individually for persecution” or “a pattern or practice ․ of persecution of a group of persons similarly situated to [her] on account of ․ political opinion.” 8 C.F.R. § 1208.13(b)(2)(iii); see also Y.C., 741 F.3d at 332. Because Shen's claim was based solely on her activities in the United States, she had to show a “reasonable possibility” that Chinese authorities were aware or likely to become aware of her political activities. Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). We find no error in the agency's determination that Shen failed to meet her burden.

The agency reasonably declined to credit Shen's testimony about a phone call her mother allegedly received from a Chinese official warning Shen to “be quiet.” First, Shen had no first-hand knowledge about the warning, and her mother was an interested witness not subject to cross-examination. See Y.C., 741 F.3d at 334 (upholding agency's determination to give “very little evidentiary weight” to unsworn letter from petitioner's husband). Second, Shen testified that her mother sent her a letter containing this information, but she did not produce the letter. See Chuilu Liu v. Holder, 575 F.3d 193, 198 n.6 (2d Cir. 2009) (“[A] failure to corroborate can suffice, without more, to support a finding that an alien has not met h[er] burden of proof.”).

Absent this warning, Shen's only evidence of the government's awareness was her speculation that Chinese authorities must be aware of her activities because they were public. That speculation is insufficient to satisfy her burden of proof. See Y.C., 741 F.3d at 333–34, 336–37 (explaining that published internet article and photographs documenting petitioner's participation in protests were insufficient evidence of awareness, even where there was evidence that the Chinese government monitors online postings); see also Jian Xing Huang, 421 F.3d at 129. Nor did the agency err in concluding that Shen failed to show a pattern or practice of persecution of similarly situated pro-democracy activists: Shen testified that she was a low-level member of a pro-democracy organization in the United States, and her country conditions evidence established only that the Chinese government has detained and imprisoned high-profile political dissidents whose political activism occurred principally in China. In sum, there was nothing in the record that established that low-level activists in the United States, like Shen, face persecution in China. See Y.C., 741 F.3d at 334–35 (holding that persecution of high-profile activist who headed two organizations was not evidence that an individual who participated in demonstrations in United States and published a single article would be persecuted).

Because Shen did not demonstrate that she has an objectively reasonable well-founded fear of persecution, her asylum claim fails. Ramsameachire, 357 F.3d at 178. Shen was thus also unable to meet the higher standard required to succeed on a claim for withholding of removal. See Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 2010). We dismiss the petition as to Shen's CAT claim because it is unexhausted. See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).

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