Xiaoxiang Li v. Lynch

15-960
Li v. Lynch
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 24th day of May, two thousand sixteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 BARRINGTON D. PARKER,
9 Circuit Judges.
10
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12 XIAOXIANG LI,
13 Petitioner,
14
15 -v.- 15-960
16
17 LORETTA E. LYNCH, UNITED STATES
18 ATTORNEY GENERAL,*
19 Respondent.
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21
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
1
1 FOR PETITIONER: GARY J. YERMAN, YERMAN &
2 ASSOCIATES, LLC, New York,
3 New York.
4 FOR RESPONDENT: DANIEL ERIC GOLDMAN (with
5 John S. Hogan & Robbin K.
6 Blaya on the brief) for
7 Benjamin C. Mizer, Principal
8 Deputy Assistant Attorney
9 General, Department of
10 Justice Civil Division,
11 Washington, D.C.
12
13 UPON DUE CONSIDERATION of this petition for review of a
14 Board of Immigration Appeals (“BIA”) decision, it is hereby
15 ORDERED, ADJUDGED, and DECREED that the petition for review
16 is DENIED.
17
18 Petitioner Xiaoxiang Li, a native of the People’s
19 Republic of China, seeks review of a March 11, 2015 decision
20 of the BIA affirming an October 2, 2012 decision of an
21 Immigration Judge (“IJ”) denying Li’s application for
22 asylum, withholding of removal, and relief under the
23 Convention Against Torture (“CAT”). We assume the parties’
24 familiarity with the underlying facts, the procedural
25 history, and the issues presented for review.
26
27 “When the BIA issues an opinion, ‘the opinion becomes
28 the basis for judicial review of the decision of which the
29 alien is complaining.’” Chen v. Gonzales, 417 F.3d 268, 271
30 (2d Cir. 2005) (quoting Niam v. Ashcroft, 354 F.3d 652, 655
31 (7th Cir. 2004)). The applicable standards of review are
32 well established. See 8 U.S.C. § 1252(b)(4)(B); see also
33 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
34
35 The Attorney General may grant asylum to an alien upon
36 a determination that the alien is a “refugee” under 8 U.S.C.
37 § 1101(a)(42). See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421,
38 427-28 (1987). The provision defines a refugee as a person
39 “who is unable or unwilling to return to” his native country
40 because of “persecution or a well-founded fear of
41 persecution on account of race, religion, nationality,
42 membership in a particular social group, or political
43 opinion.” 8 U.S.C. § 1101(a)(42)(A). Thus “[a]n applicant
44 may qualify for refugee status in two ways. First, he may
45 demonstrate that he has suffered past persecution, in which
46 case a presumption arises that he has a well-founded fear of
2
1 future persecution.” Ramsameachire v. Ashcroft, 357 F.3d
2 169, 178 (2d Cir. 2004). This Li has not undertaken to do.
3
4 “Second, the applicant may establish that he has a
5 well-founded fear of future persecution, which requires that
6 the alien present credible testimony that he subjectively
7 fears persecution and establishes that his fear is
8 objectively reasonable.” Id.
9
10 The BIA correctly determined that Li failed to adduce
11 sufficient evidence to support his claim. Li proffered no
12 evidence that the Chinese government was aware of his
13 activities in the United States on behalf of the China
14 Democracy Party. The diminished weight given to the unsworn
15 and unsigned letter written by Li’s father was within the
16 sound discretion of the agency. See Y.C. v. Holder, 741
17 F.3d 324, 334 (2d Cir. 2013) (“The agency [was entitled to
18 give such a] letter ‘very little evidentiary weight,’ both
19 because it was unsworn and because it was submitted by an
20 interested witness. We defer to the agency’s determination
21 of the weight afforded to an alien’s documentary
22 evidence.”). In any event, the letter does not indicate
23 that the Chinese government was aware of Li’s activities,
24 but rather that some inquiry was made as to whether Li
25 joined an anti-Chinese Communist Party organization in the
26 United States. Nor has Li, in order to sustain his
27 evidentiary burden, shown a pattern or practice of
28 persecution directed at similarly situated individuals based
29 on the practice of Christianity; the record indicates that
30 although underground Christian groups are targeted in parts
31 of China, the practice is not uniform throughout the
32 country. The objective component of Li’s claim is
33 accordingly lacking. See Huang v. I.N.S., 421 F.3d 125, 129
34 (2d Cir. 2005) (“In the absence of solid support in the
35 record . . . [the alien’s] fear is speculative at best.”).
36
37 Our decision on Li’s asylum claim is fatal to his
38 withholding of removal claim; “[b]ecause the withholding of
39 removal analysis overlaps factually with the asylum
40 analysis, but involves a higher burden of proof, an alien
41 who fails to establish his entitlement to asylum necessarily
42 fails to establish his entitlement to withholding of
43 removal.” Ramsameachire, 357 F.3d at 178. And Li did not
44 adequately raise his CAT claim before the BIA; it is waived.
45 See Foster v. I.N.S., 376 F.3d 75, 78 (2d Cir. 2004) (“To
46 preserve a claim, we require ‘[p]etitioner to raise issues
47 to the BIA in order to preserve them for judicial review.’”
3
1 (alteration and emphasis in original) (quoting Cervantes-
2 Ascencio v. I.N.S., 326 F.3d 83, 87 (2d Cir. 2003))).
3
4 For the foregoing reasons, the petition for review is
5 DENIED. Petitioner’s motion for a stay of removal is
6 DENIED.
7
8 FOR THE COURT:
9 CATHERINE O’HAGAN WOLFE, CLERK
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