Zhao v. Barr

   18-1822
   Zhao v. Barr
                                                                         BIA
                                                                    Sponzo, IJ
                                                                 A202 020 722
                       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.

        At a stated term of the United States Court of Appeals
   for the Second Circuit, held at the Thurgood Marshall
   United States Courthouse, 40 Foley Square, in the City of
   New York, on the 23rd day of October, two thousand twenty.

   PRESENT:
            DEBRA ANN LIVINGSTON,
                 Chief Judge,
            DENNIS JACOBS,
            SUSAN L. CARNEY,
                 Circuit Judges.
   _____________________________________

   JIE ZHAO,
                  Petitioner,

                  v.                                   18-1822
                                                       NAC
   WILLIAM P. BARR, UNITED STATES
   ATTORNEY GENERAL,
            Respondent.
   _____________________________________

   FOR PETITIONER:                 Mike P. Gao, Esq., Flushing, NY.

   FOR RESPONDENT:                 Joseph H. Hunt, Assistant Attorney
                                   General; Kohsei Ugumori, Senior
                                   Litigation Counsel; Sarah K.
                                   Pergolizzi, Trial Attorney, Office
                                   of Immigration Litigation, United
                                   States Department of Justice,
                                   Washington, DC.

       UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

       Petitioner Jie Zhao, a native and citizen of the People’s

Republic of China, seeks review of a May 22, 2018, decision

of   the   BIA    affirming    a    July    11,    2017,   decision      of    an

Immigration      Judge    (“IJ”)      denying     Zhao’s   application        for

asylum,       withholding     of   removal,       and    relief      under    the

Convention Against Torture (“CAT”).                In re Jie Zhao, No. A

202 020 722 (B.I.A. Mar. 22, 2018), aff’g No. A 202 020 722

(Immig. Ct. N.Y. City July 11, 2017).               We assume the parties’

familiarity with the underlying facts and procedural history.

       Under the circumstances of this case, we have reviewed

both    the     IJ’s    and   BIA’s     decisions       “for   the     sake   of

completeness.”         See 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.       See 8 U.S.C. § 1252(b)(4)(B); Y.C. v. Holder, 741

F.3d 325, 332 (2d Cir. 2013).
                                        2
Asylum and Withholding of Removal

    An     applicant      for    asylum     “must     establish    that     race,

religion, nationality, membership in a particular social

group, or political opinion was or will be at least one

central reason for” the claimed persecution.                       8 U.S.C. §§

1158(b)(1)(B)(i). “Likewise, a person seeking withholding of

removal must show that his or her ‘life or freedom would be

threatened in that country because of the alien’s race,

religion, nationality, membership in a particular social

group, or political opinion.’” Martinez De Artiga v. Barr,

No. 17-2898-ag, 2020 WL 3067492, at *2 (2d Cir. June 10, 2020)

(quoting    8    U.S.C.   §     1231(b)(3)(A)        (emphasis    added)).     To

constitute a particular social group, a group must be “(1)

composed     of     members       who       share     a   common     immutable

characteristic,      (2) defined          with      particularity,    and    (3)

socially distinct within the society in question.”                        Matter

of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014).                              “A

particular social group cannot be defined exclusively by the

claimed persecution, . . . it must be recognizable as a

discrete group by others in the society, and . . . it must

have well-defined boundaries.”               Id. at 232 (quotation marks

omitted).       “Courts review de novo the legal determination of

                                        3
whether a group constitutes a ‘particular social group’ under

the INA.”    Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).

       The IJ did not err in determining that Zhao’s proposed

social    group    of   practitioners    of   an    exercise       activity,

Zhuangmei Cao (“ZMC”), was not cognizable because Zhao did

not demonstrate that the group was socially distinct.                     “To

be socially distinct, a group . . . must be perceived as a

group by society.”        Matter of M-E-V-G-, 26 I. & N. Dec. at

240.     “Evidence such as country conditions reports, expert

witness testimony, and press accounts of discriminatory laws

and    policies,   historical    animosities,       and   the      like   may

establish that a group exists and is perceived as ‘distinct’

or ‘other’ in a particular society.”            Id. at 244.

       Zhao testified that the Chinese government suppresses

ZMC    practitioners    and   that   practice      of   ZMC   is   illegal.

Additionally, two letters, including one from Zhao’s wife,

state that the Chinese government began to persecute ZMC

practitioners in 2006.        However, “[a]lthough a persecutor’s

perception can be indicative of whether society views a group

as distinct, a persecutor’s perception alone is not enough to

establish a cognizable social group.”              Paloka, 762 F.3d at

196.    Zhao did not testify or present evidence regarding how

                                     4
Chinese society views practitioners of ZMC or whether Chinese

society would view such practitioners as a distinct group.

He therefore failed to establish that he was persecuted on

account of his membership in a cognizable social group.               See

Matter of W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014)

(“[T]here must be evidence showing that society in general

perceives,    considers,     or    recognizes   persons    sharing    the

particular characteristic to be a group.”).             Thus, he did not

establish    he   was   eligible    for   asylum   or   withholding   of

removal.    See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).

CAT

      An applicant for CAT protection must “establish that it

is more likely than not that he or she would be tortured if

removed to the proposed country of removal.”                   8 C.F.R.

§ 1208.16(c)(2).        Unlike asylum and withholding, CAT relief

does not require a nexus to any ground.             See id.    “Torture

is defined as any act by which severe pain or suffering,

whether physical or mental, is intentionally inflicted on a

person . . . by or at the instigation of or with the consent

or acquiescence of a public official or other person acting

in an official capacity.”         8 C.F.R. § 1208.18(a)(1); see also

Pierre v. Gonzales, 502 F.3d 109, 114, 118 (2d Cir. 2007).

                                     5
The   agency   must   consider   “all       evidence   relevant    to   the

possibility of future torture,” including: “[e]vidence of

past torture,” evidence regarding the possibility of internal

relocation,     “[e]vidence      of       gross,    flagrant,     or    mass

violations     of     human   rights,”        and    “[o]ther     relevant

information regarding conditions in the country of removal.”

8 C.F.R. § 1208.16(c)(3)(i)–(iv).

      We   review   the   agency’s        determination   regarding      the

likelihood of torture for substantial evidence and “review de

novo questions of law regarding what evidence will suffice to

carry [the] applicant’s burden of proof.”              Joaquin-Porras v.

Gonzales, 435 F.3d 172, 181 (2d Cir. 2006) (internal quotation

marks omitted).

      The record supports the IJ’s determination that Zhao did

not demonstrate that it was more likely than not that he would

be tortured in China.         See Ramsameachire v. Ashcroft, 357

F.3d 169, 185 (2d Cir. 2004) (“A CAT claim focuses solely on

the likelihood that the alien will be tortured if returned to

his or her home country, regardless of . . . his or her past

experiences.”).       There were no news articles or reports in

the record showing that the Chinese government targets ZMC

practitioners.      Besides Zhao’s testimony, the only evidence

                                      6
that the Chinese government targets ZMC practitioners was two

letters from relatives.      The IJ could reasonably assign

little weight to these letters.         See Matter of H-L-H- & Z-Y-

Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (finding that unsworn

letters from the applicant’s friends and family did not

provide   substantial   support       for   the   applicant’s   claims

because they were from interested witnesses not subject to

cross-examination), overruled on other grounds by Hui Lin

Huang, 677 F.3d 130, 133–38 (2d Cir. 2012).           Because of the

lack of evidence regarding persecution of ZMC practitioners,

substantial evidence supports the agency’s denial of CAT

protection.   See Joaquin-Porras, 435 F.3d at 181–82.

    For the foregoing reasons, the petition for review is

DENIED.   All pending motions and applications are DENIED and

stays VACATED.

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




                                  7
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