Min Xiu Chen v. Lynch ( 2016 )

15-1568
Chen v. Lynch
BIA
Cheng, IJ
A089 224 983
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 13th day of September, two thousand sixteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 MIN XIU CHEN,
14 Petitioner,
15
16 v. 15-1568
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Ning Ye, Flushing, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Daniel
27 E. Goldman, Senior Litigation
28 Counsel; Samuel P. Go, Senior
29 Litigation Counsel, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 is
4 DENIED.
5 Petitioner Min Xiu Chen, a native and citizen of China,
6 seeks review of an April 13, 2015, decision of the BIA affirming
7 a May 1, 2013, decision of an Immigration Judge (“IJ”) denying
8 Chen’s application for asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”). In re Min
10 Xiu Chen, No. A089 224 983 (B.I.A. Apr. 13, 2015), aff’g No.
11 A089 224 983 (Immig. Ct. N.Y. City May 1, 2013). We assume the
12 parties’ familiarity with the underlying facts and procedural
13 history in this case.
14 We have reviewed the IJ’s decision “as modified by the BIA’s
15 decision.” Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
16 520, 522 (2d Cir. 2005). The applicable standards of review
17 are well established. See 8 U.S.C. § 1252(b)(4)(B); see also
18 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
19 Chen did not claim to have suffered past persecution, and
20 so she needed to show a well-founded fear of future persecution.
21 8 C.F.R. § 1208.13(b)(2). To do so, she needed to “make some
2
1 showing that authorities in [her] country of nationality are
2 either aware of [her] activities or likely to become aware of
3 [her] activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135,
4 143 (2d Cir. 2008).
5 To make that showing, Chen testified that she has joined
6 two pro-democracy organizations in the United States, the Party
7 for Freedom and Democracy in China and the Chinese Democracy
8 National Committee (“DPC”). She described her activism in the
9 United States and submitted letters from her mother, which
10 reported that the police had admonished her to stop her
11 daughter’s activism. The agency gave these letters little
12 weight because Chen’s mother was an interested witness not
13 subject to cross-examination; the letters were unsigned and
14 unsworn; and the accompanying envelopes and identification
15 documents did not establish authorship or authenticity. We
16 “generally defer to the agency’s evaluation of the weight to
17 be afforded an applicant’s documentary evidence,” and do so
18 here. Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013); Matter
19 of H-L-H- & Z-Y- Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)
20 (agency can give little weight to document drafted by interested
21 witness not subject to cross examination), rev’d on other
3
1 grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
2 Chen argues that this treatment was problematic in light
3 of agency regulations governing the admission of prior
4 statements in removal proceedings. 8 C.F.R. §§ 1240.7(a),
5 1240.46(c). These regulations have no bearing here: Chen’s
6 mother did not make her statements during a previous hearing
7 or trial. Chen also cites various court of appeals and BIA
8 decisions dealing with the due process and Fourth Amendment
9 implications of admitting hearsay and alienage evidence during
10 removal proceedings. These cases are inapposite: the IJ did
11 not reject the mother’s letter as hearsay, but rather discounted
12 it as unreliable.
13 The agency’s alternative determination--that the
14 background evidence on China did not demonstrate that Chen’s
15 fear of persecution is well founded even if the Chinese
16 government was aware of her U.S. activities--was also
17 reasonable. As the BIA observed, the evidence does not
18 identify returning Chinese who were harmed for being ordinary
19 members of pro-democracy groups in the United States.
20 Consequently, the agency was entitled to find that, even if the
21 Chinese government knows about Chen’s activities, a reasonable
4
1 person in her shoes would not fear persecution. Chen points
2 to the Department of State’s 2007 Profile of Asylum Claims and
3 Country Conditions for the proposition that ordinary members
4 of pro-democracy groups have reason to fear. But that report
5 states that “persons who participate in high-profile
6 pro-democracy activities in the United States still run the risk
7 of arrest and imprisonment should they return to China.” As
8 the IJ reasoned, Chen is not similarly situated to those
9 persons: she merely joined in some protests and wrote four
10 internet articles. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
11 161 (2d Cir. 2008) (affirming BIA’s determination that
12 petitioner had not demonstrated a reasonable possibility of
13 forced sterilization because, among other things, petitioner
14 failed to present “evidence of forced sterilizations to persons
15 similarly situated to himself”)
16 Chen counters, somewhat confusingly, that “[t]o
17 distinguish ‘ordinary members’ from ‘prominent figures’ and
18 ‘leading members’ does not make sense for a ‘statutorily defined
19 group’ in its primitive development stage.” The Government is
20 correct that Chen did not raise this argument before the BIA.
21 Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 122, 124 (2d
5
1 Cir. 2007) (describing doctrine of issue exhaustion). In any
2 event, Chen cites no evidence to support the counterintuitive
3 assertion.
4 Chen argues that the agency erroneously applied the
5 standard for withholding of removal, which requires that
6 persecution be “more likely than not,” to her claim for asylum,
7 which requires only a “well-founded fear” of persecution.
8 Compare 8 C.F.R. § 1208.16(b) (withholding), with 8 U.S.C.
9 § 1101(a)(42) (asylum). Chen does not identify where or how
10 the IJ made this purported error, but she may be focused on the
11 IJ’s statement that an applicant must show that her persecutors
12 are either aware of her activities or “likely to become aware
13 of his activities.” Hongsheng Leng, 528 F.3d at 143. That is
14 a correct statement of our law.
15 Chen argues that she deserved relief based on her credible
16 testimony. She cites a pre-REAL ID Act decision, Matter of
17 Mogharrabi, in which the BIA wrote, “The alien’s own testimony
18 may in some cases be the only evidence available, and it can
19 suffice where the testimony is believable, consistent, and
20 sufficiently detailed to provide a plausible and coherent
21 account of the basis for his fear.” 19 I. & N. Dec. 439, 445
6
1 (B.I.A. 1987). But as the Government points out, Chen does not
2 claim that her own testimony is the only evidence available--she
3 relies heavily on her mother’s letter. Moreover, the REAL ID
4 Act provides that “[w]here the trier of fact determines that
5 the applicant should provide evidence that corroborates
6 otherwise credible testimony, such evidence must be provided
7 unless the applicant does not have the evidence and cannot
8 reasonably obtain the evidence.” 8 U.S.C. § 1158 (emphasis
9 added).
10 Chen argues that the IJ failed to recognize that her party
11 is an alias of the China Democracy Party (“CDP”), which the
12 Chinese government has banned, and argues that as a consequence
13 the IJ may have denied her due process. The BIA, however, did
14 not review the IJ’s findings about the two similarly named
15 parties, and so this issue is not under review here. Xue Hong
16 Yang, 426 F.3d at 522.
17 In a related due process claim, Chen alleges that the IJ
18 denied her request to present the testimony of Liqun Chen, a
19 DPC leader who could have explained the relationship between
20 that party and the CDP. But the IJ did not deny Chen’s request.
21 Rather, the parties stipulated that Liqun Chen would testify
7
1 in accordance with her written statement, and agreed to forgo
2 the formality. Given that stipulation, Chen cannot
3 demonstrate that “that she was denied a full and fair
4 opportunity to present her claims” or that the agency “otherwise
5 deprived her of fundamental fairness.” Burger v. Gonzales, 498
6 F.3d 131, 134 (2d Cir. 2007).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of removal
9 that the Court previously granted in this petition is VACATED,
10 and any pending motion for a stay of removal in this petition
11 is DISMISSED as moot. Any pending request for oral argument
12 in this petition is DENIED in accordance with Federal Rule of
13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
14 34.1(b).
15 FOR THE COURT:
16 Catherine O=Hagan Wolfe, Clerk
8