Chen v. Sessions ( 2018 )

16-1920
Chen v. Sessions
BIA
Nelson, IJ
A200 176 205
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
4 New York, on the 14th day of March, two thousand eighteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 WEN CHEN, AKA JIALING WU,
14 Petitioner,
15
16 v. 16-1920
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joshua E. Bardavid, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Stephen J.
27 Flynn, Assistant Director; Sergio
28 Sarkany, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
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.
5 Petitioner Wen Chen, a native and citizen of the People’s
6 Republic of China, seeks review of a May 20, 2016, decision
7 of the BIA affirming a November 25, 2014, decision of an
8 Immigration Judge (“IJ”) denying Chen’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Wen Chen, No. A200
11 176 205 (B.I.A. May 20, 2016), aff’g No. A200 176 205 (Immig.
12 Ct. N.Y. City Nov. 25, 2014). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We review the IJ’s decision as modified and
16 supplemented by the BIA, and therefore assume Chen’s
17 credibility and address only whether Chen demonstrated a
18 well-founded fear of future persecution. See Xue Hong Yang
19 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005);
20 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
21 The applicable standards of review are well established. 8
2
1 U.S.C. § 1252(b)(4)(B); Su Chun Hu v. Holder, 579 F.3d 155,
2 158 (2d Cir. 2009) (per curiam).
3 Absent past persecution, an alien may establish
4 eligibility for asylum by demonstrating a well-founded fear
5 of future persecution, which is “a subjective fear that is
6 objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552
7 F.3d 277, 284 (2d Cir. 2009) (citation and internal
8 quotation marks omitted); see also Y.C. v. Holder, 741 F.3d
9 324, 332 (2d Cir. 2013) (“For an asylum claim, the
10 applicant must show a reasonable possibility of future
11 persecution.” (citation and internal quotation marks
12 omitted)). “An asylum applicant can show a well-founded
13 fear of future persecution in two ways: (1) by
14 demonstrating that he or she ‘would be singled out
15 individually for persecution’ if returned, or (2) by
16 proving the existence of a ‘pattern or practice in
17 [the] . . . country of nationality . . . of persecution of
18 a group of persons similarly situated to the applicant’ and
19 establishing his or her ‘own inclusion in, and
20 identification with, such group.’” Y.C., 741 F.3d at 332
21 (quoting 8 C.F.R. § 1208.13(b)(2)(iii)).
3
1 “[T]o establish a well-founded fear of persecution in
2 the absence of any evidence of past persecution, an alien
3 must make some showing that authorities in [her] country of
4 nationality are either aware of [her] activities or likely to
5 become aware of [her] activities.” Hongsheng Leng v.
6 Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (per curiam). “In
7 the absence of solid support in the record,” a fear of
8 persecution is not objectively reasonable and is “speculative
9 at best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d
10 Cir. 2005) (per curiam).
11 Chen offered no evidence that Chinese authorities were
12 aware of her religious practice, and her contention that
13 the authorities would likely become aware of her activities
14 in the United States was purely speculative. Chen pointed
15 to the two times that she handed out leaflets in the United
16 States and a telephone conversation in which she encouraged
17 her parents, who live in China, to practice Christianity.
18 But there is no evidence that the Chinese government will
19 become aware of these activities. See Y.C., 741 F.3d at
20 334. Regarding her future practice, Chen testified that
21 she would worship at an unauthorized church in China and
4
1 proselytize. However, the record reflects that tens of
2 millions of unregistered Christians worship in China, and
3 Chen did not establish a reasonable possibility that
4 Chinese officials would single her out. See Jian Xing
5 Huang, 421 F.3d at 129; see also A.R. 230-68 (2012 Annual
6 Report of U.S. Commission on International Religious
7 Freedom).
8 To attack the agency’s decision, Chen points to the
9 State Department’s 2012 International Religious Freedom
10 Report (“IRF Report”), arguing that it reveals that China
11 restricts proselytizing and has “in some cases . . .
12 detained, arrested, or sentenced to prison a number of
13 religious leaders and adherents for activities related to
14 their religious practice.” Pet’r’s Br. 18-19 (quoting A.R.
15 435). But that report also shows that in some parts of
16 China “local authorities tacitly approved of the activities
17 of unregistered [religious] groups or did not interfere
18 with them.” A.R. 430-31 (U.S. State Department, 2012
19 International Religious Freedom Report). Given the
20 nationwide variation and lack of evidence of persecution
21 for proselytizing in Chen’s home province of Fujian, the
5
1 agency reasonably concluded that Chen failed to show a
2 sufficient possibility of harm if she continued to
3 proselytize in China. Cf. Jian Hui Shao v. Mukasey, 546
4 F.3d 138, 142, 149 (2d Cir. 2008) (finding no error in
5 BIA’s evidentiary framework that an applicant demonstrate
6 that enforcement of family planning policy is carried out
7 in his or her local area in a manner that would give rise
8 to a well-founded fear of persecution because of local
9 variations in the enforcement of that policy); see also
10 Santoso v. Holder, 580 F.3d 110, 112 (2d Cir. 2009) (per
11 curiam) (affirming agency’s finding of no pattern or
12 practice of persecution of Catholics in Indonesia where
13 evidence showed that religious violence was not nationwide
14 and that Catholics in many parts of the country were free
15 to practice their faith).
16 Chen contends that because the BIA assumed credibility,
17 it should have addressed more specifically whether the
18 Chinese government would target her for publicly
19 proselytizing because the IJ never made a specific finding on
20 this point. As we discussed above, however, the BIA
21 reasonably concluded that Chen failed to present country
6
1 conditions evidence that her fear was objectively reasonable.
2 Finally, because the BIA reasonably concluded that Chen did
3 not meet her burden for asylum, it did not err in finding
4 that she necessarily failed to meet the higher burden required
5 for withholding of removal or CAT relief. See Lecaj v.
6 Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).
7 For the foregoing reasons, the petition for review is
8 DENIED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
7