Sun v. Whitaker

17-120 Sun v. Whitaker BIA Loprest, IJ A205 618 941 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 4th day of January, two thousand nineteen. [5] 6 PRESENT: 7 JON. O. NEWMAN, 8 REENA RAGGI, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ [12] 13 MENG YUAN SUN, 14 Petitioner, [15] 16 v. 17-120 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: Meer M. M. Rahman, New York, NY. [24] 25 FOR RESPONDENT: Chad A. Readler, Acting 26 Assistant Attorney General; 27 Nancy E. Friedman, Senior 28 Litigation Counsel; Sharon M. 29 Clay, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 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 DISMISSED IN PART and DENIED IN PART. 9 Petitioner Meng Yuan Sun, a native and citizen of the 10 People’s Republic of China, seeks review of a BIA decision 11 affirming the denial of Sun’s application for asylum, 12 withholding of removal, and relief under the Convention 13 Against Torture (“CAT”). In re Meng Yuan Sun, No. A205 618 14 941 (B.I.A. Dec. 19, 2016), aff’g No. A205 618 941 (Immig. 15 Ct. N.Y. City Mar. 11, 2016). We assume the parties’ 16 familiarity with the underlying facts and procedural history 17 in this case. 18 Under the circumstances of this case, we have reviewed 19 the decisions of both the Immigration Judge (“IJ”) and the 20 BIA “for the sake of completeness,” Wangchuck v. Dep’t of 21 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), applying 22 well established standards of review, see 8 U.S.C. § 23 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 24 Cir. 2009). [2] 1 I. Timeliness of the Asylum Application 2 The agency denied Sun’s October 2012 asylum application 3 as untimely, finding that it was filed more than a year 4 after his 2008 arrival in the United States, and not within 5 a “reasonable period” following Sun’s January 2012 “changed 6 circumstances.” See 8 U.S.C. § 1158 (a)(2)(D); 8 C.F.R. § 7 1208.4(4). In January 2012, Sun stopped working in his 8 field of study, causing his legal status to expire. See 8 [9] C.F.R. § 214.2 (f)(10). Separately, but about the same time, 10 Sun began attending church and converted to Christianity. 11 The agency concluded that Sun was unreasonable in delaying 12 to file his application 10 months after his changed 13 circumstances. 14 Our jurisdiction to review the agency’s determination 15 of untimeliness is limited to “constitutional claims or 16 questions of law." See 8 U.S.C. § 1252 (a)(2)(D). Sun’s 17 petition raises neither. 18 Instead, Sun challenges the agency’s factual findings, 19 arguing that his legal status continued through July 2012, 20 and that he converted to Christianity only in August 2012, 21 making his asylum application in October timely. This 22 argument “merely quarrels over the correctness of the [3] 1 [agency’s] factual findings or justification for the 2 discretionary choices,” which we lack jurisdiction to 3 review. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 4 315, 329 (2d Cir. 2006). Because Sun has identified no 5 constitutional or legal error, we dismiss the petition as 6 it relates to asylum application. 7 II. Merits 8 Reviewing the agency’s factual findings for “substantial 9 evidence” and its “conclusions of law” de novo, see Niang v. 10 Holder, 762 F.3d 251, 253 (2d Cir. 2014), we deny the 11 remainder of Sun’s petition, identifying no error in the 12 agency’s determination that Sun failed to demonstrate 13 eligibility for asylum, and, therefore, necessarily failed to 14 meet the higher burden for withholding of removal and CAT 15 relief. See Y.C. v. Holder, 741 F.3d 324, 335 (2d Cir. 2013). 16 Asylum eligibility can be established by a well-founded 17 fear of persecution, which is a “subjective fear that is 18 objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552 19 F.3d 277, 284 (2d Cir. 2009) (internal quotation marks 20 omitted); see 8 U.S.C. § 1101 (a)(42); 8 C.F.R. 21 § 1208.13(b)(2); see also Y.C., 741 F.3d at 332 (“For an 22 asylum claim, the applicant must show a reasonable [4] 1 possibility of future persecution.” (internal quotation 2 marks omitted)). An applicant can make that showing in two 3 ways: (1) by demonstrating that he “‘would be singled out 4 individually for persecution’ if returned,” or (2) by 5 proving the existence of a “‘pattern or practice in 6 [the] . . . country of nationality . . . of persecution of 7 a group of persons similarly situated to the applicant’ and 8 establishing his or her ‘own inclusion in, and 9 identification with, such group.’” Y.C., 741 F.3d at 332 10 (quoting 8 C.F.R. § 1208.13 (b)(2)(iii)). “[I]n order to 11 establish eligibility for relief based exclusively on 12 activities undertaken after . . . arrival in the United 13 States, an alien must make some showing that authorities in 14 his country of nationality are (1) aware of his activities 15 or (2) likely to become aware of his activities.” Hongsheng 16 Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008). 17 Here, substantial evidence supports the agency’s 18 conclusion that Sun failed to show a reasonable possibility 19 that he would be singled out for persecution. See id.; Jian 20 Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In 21 the absence of solid support in the record,” a fear of 22 persecution is not well founded and “is speculative at [5] 1 best.”). Sun’s only evidence that Chinese authorities were 2 aware of his religious activities was a letter from his 3 mother, an interested witness unavailable for cross 4 examination. The agency acted within its discretion in 5 declining to credit this evidence. See Y.C., 741 F.3d at 334 6 (deferring to agency’s determination that letter from 7 relative in China—stating that petitioner had been visited by 8 police who were aware of applicant’s pro-democracy activities 9 in the United States—was entitled to limited weight because 10 it was unsworn and submitted by an interested witness). 11 Moreover, while Sun provided certain evidence about his 12 proselytizing activities (which the agency, in any event, did 13 not credit) he does not challenge the IJ’s finding, supported 14 by country-conditions evidence, that Chinese authorities 15 focus their efforts on pastors or leaders of house churches, 16 not individual worshipers. See Xiao Ji Chen, 471 F.3d at 342 17 (weight accorded to an applicant’s evidence “lie[s] largely 18 within the discretion of the IJ” (internal quotation marks 19 omitted)). 20 Further, substantial evidence also supports the agency’s 21 determination that Sun failed to establish a pattern or 22 practice of persecuting underground Christians in China. See [6] 1 Jian Xing Huang, 421 F.3d at 129 . To establish such a pattern 2 or practice, an applicant must demonstrate that the harm to 3 that group is “systemic or pervasive.” In re A-M-, 23 I. & 4 N. Dec. 737, 741 (B.I.A. 2005); see Mufied v. Mukasey, 508 5 F.3d 88, 92-93 (2d Cir. 2007). The agency properly considered 6 the country conditions evidence, see Xiao Ji Chen, 471 F.3d 7 at 342, and reasonably concluded that there was not systemic 8 or pervasive persecution, observing that tens of millions of 9 Christians practice this faith in China without apparent 10 interference. 11 Accordingly, we identify no error in the agency’s 12 decision to deny Sun asylum, withholding of removal, or CAT 13 relief. 14 For the foregoing reasons, the petition for review is 15 DISMISSED IN PART and DENIED IN REMAINING PART. As we have 16 completed our review, any stay of removal that the Court 17 previously granted in this petition is VACATED, and any 18 pending motion for a stay of removal in this petition is 19 DISMISSED as moot. Any pending request for oral argument in 20 this petition is DENIED in accordance with Federal Rule of [7] 1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 2 34.1(b). 3 FOR THE COURT: 4 Catherine O’Hagan Wolfe 5 Clerk of Court