14-3414
Chen v. Lynch
BIA
Weisel, IJ
A200 924 748
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 23rd day of June, two thousand fifteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 QING CHEN,
14 Petitioner,
15
16 v. 14-3414
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,*
21 Respondent.
22 _____________________________________
23
24
* 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., as the Respondent in this case.
1 FOR PETITIONER: Douglas B. Payne, New York, New York.
2
3 FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
4 Attorney General; Melissa
5 Neiman-Kelting, Senior Litigation
6 Counsel; Anna Nelson, Trial
7 Attorney, Office of Immigration
8 Litigation, United States
9 Department of Justice, Washington,
10 D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED that the petition for review is
15 DENIED.
16 Petitioner Qing Chen, a native and citizen of People’s
17 Republic of China, seeks review of an August 21, 2014, decision
18 of the BIA affirming a March 6, 2013, decision of an Immigration
19 Judge (“IJ”) denying Chen’s application for asylum, withholding
20 of removal, and relief under the Convention Against Torture
21 (“CAT”). In re Qing Chen, No. A200 924 748 (B.I.A. Aug. 21,
22 2014), aff’g No. A200 924 748 (Immig. Ct. N.Y. City Mar. 6,
23 2013). We assume the parties’ familiarity with the underlying
24 facts and procedural history in this case.
25 Under the circumstances of this case, we have reviewed the
26 decision of the IJ as supplemented by the BIA. Yan Chen v.
2
1 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
2 standards of review are well established. See 8 U.S.C.
3 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510,
4 513 (2d Cir. 2009).
5 Asylum, Withholding of Removal, and CAT Relief
6 Substantial evidence supports the agency’s determination
7 that Chen failed to establish a well-founded fear of persecution
8 on account of her religion. In order “to establish a
9 well-founded fear of persecution in the absence of any evidence
10 of past persecution, an alien must make some showing that
11 authorities in his country of nationality are either aware of
12 his activities or likely to become aware of his activities.”
13 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).
14 Contrary to Chen’s contention, this requirement is not limited
15 to applicants who claim a well-founded fear based on activities
16 conducted only in the United States, but rather extends to
17 applicants, such as Chen, who intend to continue activities
18 commenced in the United States upon removal to their home
19 country. See id. at 142-43 (citing Kyaw Zwar Tun v. INS, 445
20 F.3d 554, 565 (2d Cir. 2006)).
3
1 Chen does not otherwise challenge the agency’s dispositive
2 determination that she failed to demonstrate that Chinese
3 authorities are likely to discover her religious practice.
4 That finding was reasonable given that the 2011 U.S. Department
5 of State’s International Religious Freedom Report provides that
6 between 50 and 70 million Christians practice in unregistered
7 church gatherings in China.
8 Moreover, the agency reasonable found speculative Chen’s
9 claim that, if her religious practice were discovered, she would
10 face persecution. See Jian Xing Huang v. INS, 421 F.3d 125,
11 129 (2d Cir. 2005). Although Chen submitted evidence that
12 individuals in certain provinces face religious persecution,
13 she did not present any evidence that religious persecution
14 occurs in her home province. See id.; see also Jian Hui Shao
15 v. Mukasey, 546 F.3d 138, 142, 149, 169 (2d Cir. 2008) (finding
16 no error in the BIA’s requirement that an applicant demonstrate
17 that officials in her local area enforce a government policy
18 in a manner that would give rise to a well-founded fear of
19 persecution when the country conditions evidence demonstrates
20 local variations in the enforcement of that policy).
4
1 Accordingly, because Chen failed to satisfy her burden of
2 demonstrating that Chinese officials are aware of or likely to
3 become aware of her religious practice or that officials would
4 harm her on account of her religion, substantial evidence
5 supports the agency’s determination that she failed to
6 establish a well-founded fear of persecution. See Hongsheng
7 Leng, 528 F.3d at 143; Jian Xing Huang, 421 F.3d at 129. That
8 finding was dispositive of asylum, withholding of removal, and
9 CAT relief because those claims were based on the same factual
10 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
11 2006).
12 Ineffective Assistance of Counsel
13 The BIA did not err in rejecting Chen’s ineffective
14 assistance of counsel claim because she failed to comply with
15 the procedural requirements announced in Matter of Lozada, 19
16 I. & N. Dec. 637 (BIA 1988). Under Lozada, an alien is required
17 to file an affidavit detailing her agreement with former counsel
18 and to submit proof that she notified former counsel and the
19 proper disciplinary authority of her allegations. Failure to
20 comply substantially with the Lozada requirements constitutes
21 forfeiture of an ineffective assistance claim. See Jian Yun
5
1 Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46-47 (2d Cir.
2 2005).
3 Chen did not submit any of the evidence required under
4 Lozada, but rather argued that she was exempt from those
5 requirements because her former counsel’s ineffectiveness was
6 clear on the face of the record. “[W]e have not required a
7 slavish adherence to the [Lozada] requirements, holding only
8 that substantial compliance is necessary.” Yi Long Yang v.
9 Gonzales, 478 F.3d 133, 143-44 (2d Cir. 2007) (citation
10 omitted). We have found substantial compliance when the facts
11 on which an ineffective assistance of counsel claim is based
12 “are clear on the face of the record.” Id. at 143. Here, it
13 is not clear from the record that Chen’s former counsel was
14 ineffective such that adherence to the Lozada requirements was
15 unnecessary.
16 Chen first asserts that her former counsel was clearly
17 ineffective because direct examination spans only four pages
18 of the hearing transcript. However, counsel’s decision to halt
19 direct examination might have been a tactical decision based
20 on Chen’s testimony. A tactical decision, “even if unwise in
21 hindsight,” does not constitute ineffective assistance of
6
1 counsel. Changxu Jiang v. Mukasey, 522 F.3d 266, 271 (2d Cir.
2 2008).
3 Chen contends that the IJ’s finding of insufficient
4 corroboration was the result of counsel’s failure to proffer
5 Chen’s husband’s testimony. However, the record reveals that
6 Chen was unable to provide more reliable statements from
7 uninterested third parties as she admitted that neither her
8 pastor nor any church member agreed to testify or make
9 statements on her behalf. Therefore, because it is not clear
10 on the face of the record that former counsel was ineffective,
11 the BIA did not err in finding Chen’s ineffective assistance
12 of counsel claim forfeited for failure to comply with Lozada.
13 See Jian Yun Zheng, 409 F.3d at 46-47; see also Yi Long Yang,
14 478 F.3d at 143-44.
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of removal
17 that the Court previously granted in this petition is VACATED,
18 and any pending motion for a stay of removal in this petition
19 is DISMISSED as moot. Any pending request for oral argument
20 in 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, Clerk
8