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