Lu v. Garland

19-2484
Lu v. Garland
BIA
Hom, IJ
A087 859 905
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 14th day of October, two thousand twenty-one.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 WENXIN LU,
14 Petitioner,
15
16 v. 19-2484
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhen Liang Li, Esq., New York,
24 NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant
27 Attorney General; Cindy S.
28 Ferrier, Assistant Director;
29 Surell Brady, Trial Attorney,
1 Office of Immigration Litigation,
2 United States Department of
3 Justice, Washington, DC.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Wenxin Lu, a native and citizen of the
10 People’s Republic of China, seeks review of a July 15, 2019,
11 decision of the BIA affirming a January 26, 2018, decision of
12 an Immigration Judge (“IJ”) denying asylum, withholding of
13 removal, and relief under the Convention Against Torture
14 (“CAT”). In re Wenxin Lu, No. A087 859 905 (B.I.A. July 15,
15 2019), aff’g No. A087 859 905 (Immig. Ct. N.Y. City Jan. 26,
16 2018). We assume the parties’ familiarity with the
17 underlying facts and procedural history.
18 We have reviewed the IJ’s decision as modified by the
19 BIA, i.e., minus the timeliness and adverse credibility
20 determinations that the BIA did not reach. See Xue Hong Yang
21 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
22 The applicable standards of review are well established. See
23 8 U.S.C. § 1252(b)(4)(B); Wei Sun v. Sessions, 883 F.3d 23,
24 27 (2d Cir. 2018).
2
1 The agency did not err in finding that Lu failed to
2 adequately corroborate his claim that police detained and
3 beat him in China on account of his religious practice. “The
4 testimony of the applicant may be sufficient to sustain the
5 applicant’s burden without corroboration, but only if the
6 applicant satisfies the trier of fact that the applicant’s
7 testimony is credible, is persuasive, and refers to specific
8 facts sufficient to demonstrate that the applicant is a
9 refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also id.10 § 1231(b)(3)(C); Wei Sun, 883 F.3d at 28. “In determining
11 whether the applicant has met [his] burden, the trier of fact
12 may weigh the credible testimony along with other evidence of
13 record. Where the trier of fact determines that the
14 applicant should provide evidence that corroborates otherwise
15 credible testimony, such evidence must be provided unless the
16 applicant does not have the evidence and cannot reasonably
17 obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also
18 id. § 1231(b)(3)(C).
19 As the agency found, Lu failed to corroborate his claim
20 of mistreatment with evidence from the doctor he visited after
21 his release from detention, and he did not corroborate his
22 testimony or his mother’s assertion that she borrowed money
3
1 from relatives to secure his release. Therefore, the only
2 evidence to corroborate Lu’s claim of past persecution were
3 letters from his mother and two fellow churchgoers, which the
4 agency reasonably declined to credit because they were
5 unsworn. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
6 2013) (deferring to the agency’s decision to afford little
7 weight to an unsworn letter submitted from a relative).
8 Accordingly, the agency did not err in finding that Lu failed
9 to corroborate his past persecution. See 8 U.S.C.
10 §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C); see also Wei Sun, 883
11 F.3d at 28.
12 Absent past persecution, an applicant may establish
13 eligibility for asylum by demonstrating a well-founded fear
14 of future persecution. 8 C.F.R. § 1208.13(b)(2); Hongsheng
15 Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir. 2008). To do so,
16 the applicant must show either “a reasonable possibility he
17 . . . would be singled out individually for persecution” or
18 that the country of removal has a “pattern or practice” of
19 persecuting similarly situated individuals. 8 C.F.R.
20 § 1208.13(b)(2)(iii); Hongsheng Leng, 528 F.3d at 142. Where
21 an applicant’s claim is based on activities in the United
22 States, the applicant “must make some showing that
4
1 authorities in his country of nationality are either aware of
2 his activities or likely to become aware of his activities.”
3 Hongsheng Leng, 528 F.3d at 143.
4 Given Lu’s failure to establish that Chinese officials
5 targeted him on account of his past religious practice, the
6 agency reasonably concluded that Lu failed to demonstrate
7 that Chinese officials are aware of his religious practice.
8 See id. The agency also did not err in finding that he failed
9 to establish a reasonable possibility that they would
10 discover his practice of Christianity given his testimony
11 regarding his limited role in the church and the country
12 conditions evidence that there are tens of millions of
13 Christians in China.
14 The agency also did not err in determining that Lu failed
15 to establish a pattern or practice of persecution of similarly
16 situated individuals because, despite evidence that Chinese
17 officials restrict religious activities and harass and
18 persecute practitioners in some areas of China, in other
19 areas, Christians practice their religion without government
20 interference. See 8 C.F.R. § 1208.13(b)(2)(ii), (iii); see
21 also Santoso v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009)
22 (denying petition where agency considered background
5
1 materials and rejected pattern or practice claim because
2 evidence showed only localized violence); In re A-M-, 23 I.
3 & N. Dec. 737, 741 (B.I.A. 2005) (recognizing that a pattern
4 or practice of persecution is the “systemic or pervasive”
5 persecution of a group).
6 Accordingly, the agency did not err in concluding that
7 Lu failed to establish past persecution or a well-founded
8 fear of persecution. See 8 U.S.C. §§ 1158(b)(1)(B)(i), (ii),
9 1231(b)(3)(C); 8 C.F.R. §§ 1208.13(b), 1208.16(b). Those
10 findings were dispositive of asylum, withholding of removal,
11 and CAT relief because all three claims were based on the
12 same factual predicate. See 8 C.F.R. §§ 1208.13(b),
13 1208.16(b); Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir.
14 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. All pending motions and applications are DENIED and
17 stays VACATED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
6