Chen v. Garland

19-10
Chen v. Garland
BIA
Hom, IJ
A205 050 445
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 19th day of April, two thousand twenty-one.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 RICHARD C. WESLEY,
10 WILLIAM J. NARDINI,
11 Circuit Judges.
12 _____________________________________
13
14 XIAOCUI CHEN,
15 Petitioner,
16
17 v. 19-10
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL, 1
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gerald Karikari, Karikari &
25 Associates, P.C., New York, NY.
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Merrick B. Garland is automatically substituted
as Respondent.
1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
2 Attorney General; Cindy S.
3 Ferrier, Assistant Director; Micah
4 Engler, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, DC.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Xiaocui Chen, a native and citizen of China,
14 seeks review of a December 19, 2018, decision of the BIA
15 affirming a November 8, 2017, decision of an Immigration Judge
16 (“IJ”) denying Chen’s application for asylum, withholding of
17 removal, and relief under the Convention Against Torture
18 (“CAT”). In re Xiaocui Chen, No. A 205 050 445 (B.I.A. Dec.
19 19, 2018), aff’g No. A 205 050 445 (Immig. Ct. N.Y. City Nov.
20 8, 2017). We assume the parties’ familiarity with the
21 underlying facts and procedural history.
22 Under the circumstances of this case, we have reviewed
23 the IJ’s decision as supplemented by the BIA. See Yan Chen
24 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
25 standards of review are well established. See 8 U.S.C.
2
1 § 1252(b)(4)(B); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir.
2 2013).
3 The agency denied Chen’s asylum claim as time barred and
4 alternatively denied all relief on the merits. We find legal
5 error in the agency’s time bar ruling as neither the IJ nor
6 the BIA addressed Chen’s argument that her conversion to
7 Christianity while in the United States was a change in
8 circumstances that excused her untimely filing. See 8 U.S.C.
9 § 1158(a)(2)(B), (D); Mendez v. Holder, 566 F.3d 316, 323 (2d
10 Cir. 2009) (holding that an error of law may arise where facts
11 have “been totally overlooked”). However, we decline to
12 remand because, as discussed below, we find no error in the
13 agency’s alternative and dispositive conclusion that Chen
14 failed to establish a well-founded fear of persecution. See
15 Gurung v. Barr, 929 F.3d 56, 62 (2d Cir. 2019) (noting that
16 remand is not necessary “when the IJ articulates an
17 alternative and sufficient basis for her determination”).
18 Absent past persecution, an asylum applicant may
19 establish eligibility for relief by demonstrating a well-
20 founded fear of future persecution. See 8 C.F.R.
21 § 1208.13(b)(2); Ramsameachire v. Ashcroft, 357 F.3d 169, 178
3
1 (2d Cir. 2004). To do so, an applicant must show either a
2 reasonable possibility that she would be singled out for
3 persecution or that the country of removal has a “pattern or
4 practice” of persecuting similarly situated individuals. 8
5 C.F.R. § 1208.13(b)(2)(iii); see In re A-M-, 23 I. & N. Dec.
6 737, 741 (BIA 2005) (defining pattern or practice as “systemic
7 or pervasive” persecution). “[T]o establish eligibility for
8 relief based exclusively on activities undertaken after h[er]
9 arrival in the United States, an alien must make some showing
10 that authorities in h[er] country of nationality are (1) aware
11 of h[er] activities or (2) likely to become aware of h[er]
12 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 138
13 (2d Cir. 2008).
14 The agency reasonably found that Chen failed to satisfy
15 her burden of proof because her evidence that Chinese police
16 were aware of her religious practice in the United States
17 consisted of vague testimony and letters from friends and
18 family members that were entitled to minimal weight, and her
19 country conditions evidence did not reflect a pattern or
20 practice of persecution of Christians in China. Chen alleged
21 that Chinese authorities were aware of her practice of
4
1 Christianity in the United States because she had discussed
2 Christianity on the telephone with people in China. But her
3 information lacked detail about who she spoke to or when, and
4 her supporting letters were authored by individuals not
5 available for cross-examination. See Jian Xing Huang v. U.S.
6 INS, 421 F.3d 125, 128 (2d Cir. 2005) (requiring “credible,
7 specific, and detailed evidence”); Y.C., 741 F.3d at 332, 334
8 (holding that “[w]e generally defer to the agency’s
9 evaluation of the weight to be afforded an applicant’s
10 documentary evidence” and upholding BIA’s decision not to
11 credit letter from applicant’s spouse). Moreover, the
12 country conditions evidence reported tens of millions of
13 Christians practicing in unregistered churches in China. The
14 agency did not err in determining that this evidence failed
15 to demonstrate a pattern or practice of persecution of
16 Christians in China based on the record in this case. See
17 8 C.F.R. § 1208.13(b)(2)(iii); Santoso v. Holder, 580 F.3d
18 110, 112 & n.1 (2d Cir. 2009); Mufied v. Mukasey, 508 F.3d 88,
19 92–93 (2d Cir. 2007). Because the agency reasonably found
20 that Chen failed to demonstrate the well-founded fear of
21 persecution needed for asylum, she “necessarily” failed to
5
1 meet the higher standards for withholding of removal and CAT
2 relief. Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010).
3 For the foregoing reasons, the petition for review is
4 DENIED. All pending motions and applications are DENIED and
5 stays VACATED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe,
8 Clerk of Court
6