Yongsong Chen v. Holder ( 2015 )

13-4839
Chen v. Holder
BIA
Nelson, IJ
A087 783 531
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 23rd day of March, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 YONGSONG CHEN,
14 Petitioner,
15
16 v. 13-4839
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, NY.
24
25 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
26 Attorney General; Eric W.
27 Marsteller, Senior Litigation
28 Counsel; Rosanne M. Perry, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
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 Yongsong Chen, a native and citizen of
6 China, seeks review of a December 11, 2013, order of the BIA
7 affirming the March 6, 2012, decision of an Immigration
8 Judge (“IJ”), which denied asylum, withholding of removal,
9 and Convention Against Torture (“CAT”) relief. In re
10 Yongsong Chen, No. A087 783 531 (B.I.A. Dec. 11, 2013),
11 aff’g No. A087 783 531 (Immig. Ct. New York City Mar. 6,
12 2012). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 both the IJ’s and the BIA’s opinions “for the sake of
16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
17 2008)(internal quotation marks omitted). The applicable
18 standards of review are well established. See 8 U.S.C.
19 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d
20 162, 165-66 (2d Cir. 2008).
21 For asylum applications governed by the REAL ID Act,
22 such as Chen’s, the IJ may, considering the totality of the
23 circumstances, base a credibility finding on an asylum
2
1 applicant’s demeanor, candor, or responsiveness, and
2 inconsistencies in his statements and other record evidence,
3 without regard to whether they go “to the heart of the
4 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
5 Lin, 534 F.3d at 163-65.
6 Here, the IJ’s credibility determination rested
7 substantially on a purported inconsistency in Chen’s
8 testimony regarding his willingness to spread Christianity
9 to his family members. However, the IJ failed to seek an
10 explanation from Chen for the contradiction. “[I]t is []
11 error for an IJ to find an applicant’s testimony
12 inconsistent without first raising the putative
13 discrepancies during asylum proceedings so that the
14 petitioner has a chance to provide what may be satisfactory
15 explanations for the supposed problem.” Ming Shi Xue v.
16 BIA, 439 F.3d 111, 122 (2d Cir. 2006).
17 We nonetheless deny the petition for review because the
18 agency reasonably found that Chen failed to meet his burden
19 to establish a well-founded fear of persecution in China.
20 See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A); Kyaw Zwar Tun v.
21 INS, 445 F.3d 554, 564 (2d Cir. 2006). To establish a well-
22 founded fear of persecution, an applicant must show that he
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1 subjectively fears persecution and that his fear is
2 objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d
3 169, 178 (2d Cir. 2004); see also Jian Hui Shao v. Mukasey,
4 546 F.3d 138, 162 (2d Cir. 2008). An applicant can
5 establish the objective reasonableness of his fear of future
6 persecution by either (1) offering evidence that he would be
7 singled out individually for persecution, or (2) proving
8 that a pattern or practice of persecution of similarly
9 situated persons exists in his home country. 8 C.F.R.
10 § 1208.13(b)(2); Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir.
11 2007). “Put simply, to establish a well-founded fear of
12 persecution in the absence of any evidence of past
13 persecution, an alien must make some showing that
14 authorities in his country of nationality are either aware
15 of his activities or likely to become aware of his
16 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
17 (2d Cir. 2008).
18 The agency reasonably found that Chen did not establish
19 that he would be individually targeted for persecution in
20 China. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d
21 Cir. 2005). Chen identifies no evidence that the Chinese
22 authorities are aware of his religious activities in the
4
1 United States. The country conditions evidence shows that
2 the authorities are more likely to target religious leaders
3 than individual church members, and Chen never asserted that
4 he would be a religious leader in China.
5 Chen also failed to establish a pattern or practice of
6 persecution in China of similarly situated Christians.
7 While the country conditions evidence shows that China
8 restricts religious practices, it does not demonstrate the
9 type of systemic and pervasive threat of harm required to
10 establish a pattern or practice of persecution against
11 Christians. See Jian Hui Shao, 546 F.3d at 155, 172. Chen
12 also does not point to any country conditions evidence
13 showing that Christians are persecuted in his home province.
14 Because Chen failed to establish a well-founded fear of
15 persecution, he necessarily could not meet the higher burden
16 required for withholding of removal or CAT relief. See
17 Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, Chen’s pending
5
1 motion for a stay of removal in this petition is DENIED as
2 moot.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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