13-2892
Wen v. Holder
BIA
Poczter, IJ
A205 032 463
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 15th day of July, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 JIUCHENG WEN,
14 Petitioner,
15
16 v. 13-2892
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhong Yue Zhang, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Cindy S. Ferrier, Assistant
27 Director; Michele Y.F. Sarko, Trial
28 Attorney, Civil Division, Office of
29 Immigration Litigation, United States
30 Department of Justice, Washington,
31 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Jiucheng Wen, a native and citizen of China,
6 seeks review of a July 8, 2013 decision of the BIA affirming
7 an October 1, 2012 decision of an Immigration Judge (“IJ”)
8 denying Wen’s application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”). In
10 re Jiucheng Wen, No. A205 032 463 (B.I.A. July 8, 2013), aff’g
11 No. A205 032 463 (Immig. Ct. N.Y. City Oct. 1, 2012). We
12 assume the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we have considered
15 both the IJ’s and the BIA’s opinions “for the sake of
16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
17 2008) (per curiam) (internal quotation marks omitted). The
18 applicable standards of review are well established. See 8
19 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
20 513 (2d Cir. 2009).
21 Wen did not claim to have suffered past persecution, so
22 he needed to show a well-founded fear of future persecution.
2
1 8 C.F.R. § 1208.13(b)(2). “Put simply, to establish a
2 well-founded fear of persecution in the absence of any
3 evidence of past persecution, an alien must make some showing
4 that authorities in his country of nationality are either
5 aware of his activities or likely to become aware of his
6 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d
7 Cir. 2008) (per curiam).
8 The agency reasonably concluded that Wen failed to make
9 that showing. Wen testified that his father reported that the
10 Chinese police have visited his home seven times to threaten
11 Wen with persecution if he returns. His father’s letter
12 attested to one such visit. When pressed on this
13 inconsistency, Wen testified that the six other visits
14 occurred after his father wrote the letter, and that his
15 attorney never asked for an updated one. The agency was not
16 compelled to credit this explanation. Majidi v. Gonzales, 430
17 F.3d 77, 80-81 (2d Cir. 2005). Given the inconsistency, and
18 the fact that Wen’s father was an interested witness who was
19 unavailable for cross examination, the agency was also within
20 its discretion to discount the letter. Xiao Ji Chen v. U.S.
21 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (weight
22 afforded evidence lies largely within the discretion of the
3
1 agency); Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 215 (BIA
2 2010) (agency can give little weight to document drafted by
3 interested witness not subject to cross-examination), rev’d on
4 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d
5 Cir. 2012).
6 Wen’s testimony that his ex-wife received a similar visit
7 did not sufficiently bolster his claim: he failed to provide
8 any corroborating evidence of the visit. “Where the trier of
9 fact determines that the applicant should provide evidence
10 that corroborates otherwise credible testimony, such evidence
11 must be provided unless the applicant does not have the
12 evidence and cannot reasonably obtain the evidence.” Yan Juan
13 Chen v. Holder, 658 F.3d 246, 252 (2d Cir. 2011) (per curiam)
14 (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)). The agency was not
15 compelled to accept Wen’s explanation that he did not submit
16 an affidavit from his ex-wife because their relationship is
17 strained.
18 Wen also posited that the Chinese government could
19 identify him by cross-matching surveillance footage of him
20 demonstrating outside the Chinese consulate, his Internet
21 articles on the China Democracy Party (“CDP”) website, his
22 Chinese household registration identification, and the exit
23 record on his passport. The agency was not compelled to make
4
1 these inferential leaps. Indeed, “[i]n the absence of solid
2 support in the record for [an applicant’s] assertion that he
3 will be [persecuted], his fear is speculative at best.” Jian
4 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per
5 curiam). Record evidence shows that the Chinese government
6 monitors electronic communications within its own borders, but
7 that does not mean it surveils all protests in the United
8 States or that it “is aware of every anti-Communist or
9 pro-democracy piece of commentary published online.” Y.C. v.
10 Holder, 741 F.3d 324, 334 (2d Cir. 2013).
11 Nor did the agency err in finding that Wen failed to
12 establish that the Chinese government has a pattern or
13 practice of persecuting people similarly situated to him. See
14 8 C.F.R. § 1208.13(b)(2)(iii)(A). At his merits hearing, Wen
15 highlighted three CDP members who were persecuted when they
16 returned to China. But as the IJ noted, one was a founding
17 member of the CDP and the other two were members of CDP in
18 China. Wen, on the other hand, joined the CDP in the United
19 States. On appeal, Wen has highlighted the plight of an
20 artist who was beaten and placed on house arrest in China.
21 But the country report he cites identifies the person as an
22 “artist and activist,” not a CDP member, and says nothing
23 about him engaging in pro-democracy protests in the United
24 States.
5
1 Having reasonably found that Wen failed to establish the
2 objective likelihood of persecution needed for asylum, the
3 agency did not err in denying withholding of removal and
4 relief under the CAT, because these claims shared the same
5 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57
6 (2d Cir. 2006).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, the pending motion
9 for a stay of removal in this petition is DISMISSED as moot.
10
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
6