14-4708
Ying v. Lynch
BIA
Nelson, IJ
A200 032 094
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
25th day of November, two thousand fifteen.
PRESENT:
RICHARD C. WESLEY,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
LIN HUAN LIN YING, AKA XUE YING
YING-XU,
Petitioner,
v. 14-4708
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Cora J. Chang, Law Office of Cora J.
Chang, New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Anthony
W. Norwood, Senior Litigation
Counsel; Shahrzad Baghai, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Lin Huan Lin Ying (“Lin”), a native and citizen
of the People’s Republic of China, seeks review of a December
3, 2014, decision of the BIA affirming a February 26, 2013,
decision of an Immigration Judge (“IJ”) denying Lin’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Lin Huan
Lin Ying, No. A200 032 094 (B.I.A. Dec. 3, 2014), aff’g No. A200
032 094 (Immig. Ct. N.Y. City Feb. 26, 2013). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.
We have reviewed the IJ’s decision as modified by the BIA,
i.e., minus the IJ’s adverse credibility determination. See
Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
2
Cir. 2005). The applicable standards of review are well
established. See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
Cir. 2009). Because the BIA declined to reach the IJ’s adverse
credibility determination, we assume that Lin testified
credibly. See Mei Fun Wong v. Holder, 633 F.3d 64, 68 (2d
Cir.2011).
I. Corroboration
The agency found that Lin failed adequately to corroborate
his claim that he was arrested, detained, and beaten for
attending an underground Catholic church in China. “Where the
trier of fact determines that the applicant should provide
[corroborative] evidence . . . such evidence must be provided
unless the applicant does not have the evidence and cannot
reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii);
see also Yan Juan Chen v. Holder, 658 F.3d 246, 252-53 (2d Cir.
2011).
Lin submitted two pieces of evidence corroborating his
claim: a letter from the priest of his underground church, and
a letter from his wife. As the IJ noted, the letter from Lin’s
priest does not mention Lin’s arrest or the arrest of any other
church members in 2004. Thus, it does not corroborate Lin’s
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claim that he was persecuted. Lin argues that the IJ erred
because she never gave him an opportunity to explain the
letter’s omissions. While an IJ may be required to give an
alien notice that corroboration may be expected, however, the
IJ is not required to provide an opportunity for the alien to
cure defects in the evidence. See Yan Juan Chen, 658 F.3d at
253 (citing Ming Shi Xue v. BIA, 439 F.3d 111, 122 (2d Cir. 2006)
(suggesting that Court’s precedent requires that IJ give
“adequate and meaningful notice to the applicant of evidence”
the IJ believes is necessary before denying claim for
insufficient corroboration)).
The IJ gave Lin’s wife’s letter diminished weight because
it was unauthenticated and from a witness unavailable for cross
examination. In addition, Lin’s wife was not an eyewitness to
the events in question. These were valid grounds for according
diminished weight to the letter. Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 342 (2d Cir. 2006); In re H-L-H & Z-Y-Z,
25 I. & N. Dec. 209, 214-15 (BIA 2010), rev’d on other grounds
by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
The IJ also found that Lin could have submitted statements
from fellow underground church members who knew that he had been
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arrested in 2004. Lin testified that one of the church members
had agreed to write a letter, but he moved to Japan and Lin did
not have his contact information. Lin did not explain why he
did not obtain letters from any of the other members and argues
that the IJ never asked him why he did not obtain any other
statements. However, Lin was explicitly asked at his merits
hearing why he had not submitted statements from any of his
fellow church members. Thus, Lin’s argument is belied by the
record. Accordingly, the agency properly denied Lin’s past
persecution claim for lack of corroboration. 8 U.S.C.
§ 1158(b)(1)(B)(ii).
II. Pattern or Practice of Persecution
To show a well-founded fear of persecution in the absence
of any evidence of past persecution, an alien must show a
reasonable possibility that authorities in his country are
either aware of his activities or are likely to become aware
of them. Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.
2008). As relevant here, an alien may make this showing by
“prov[ing] the existence of ‘a pattern or practice in his or
her country . . . of persecution of a group of persons similarly
situated to the applicant.’” Kyaw Zwar Tun v. INS, 445 F.3d
5
554, 564 (2d Cir. 2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)).
To establish a pattern or practice of persecution against a
particular group, a petitioner must demonstrate that the harm
to that group is “so systemic or pervasive as to amount to a
pattern or practice of persecution.” In re A-M-, 23 I. & N.
Dec. 737, 741 (BIA 2005); see also Mufied v. Mukasey, 508 F.3d
88, 91 (2d Cir. 2007).
We cannot conclude that the agency erred in determining
that Lin failed to establish a pattern or practice of
persecution. The 2005 State Department International
Religious Freedom Report, on which Lin relies, indicates that
treatment of underground religious groups in China varies by
region, with some regional authorities allowing underground
groups to worship unimpeded. Cf. Santoso v. Holder, 580 F.3d
at 110, 112 (2d Cir. 2009). Moreover, Lin’s additional
evidence describes only isolated incidents of harm and makes
clear that the Chinese government targets religious leaders,
not worshipers. At no point has Lin alleged that he was being
trained to be a religious leader. One article states that China
cracked down on underground churches in 2006, but Lin has
presented no evidence to show that this crackdown persists.
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Having failed to establish a pattern or practice of
persecution before the agency, Lin did not meet his burden for
asylum based on a fear of future persecution. As a result, he
necessarily fails to meet the higher burden necessary to obtain
withholding of removal or CAT relief. Paul v. Gonzales, 444 F.3d
148, 156-57 (2d Cir. 2006) (withholding); Xue Hong Yang v. U.S.
Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005) (CAT).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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