Wu v. Sessions , 699 F. App'x 24 ( 2017 )

16-2014
Wu v. Sessions
BIA
Christensen, IJ
A205 806 721
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
13th day of October, two thousand seventeen.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
ZHIMIAO WU,
Petitioner,
v. 16-2014
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Theodore N. Cox, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General, Civil Division;
Erica B. Miles, Senior Litigation
Counsel; Anthony O. Pottinger, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
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
DISMISSED in part and DENIED in remaining part.
Petitioner Zhimiao Wu, a native and citizen of China, seeks
review of a May 31, 2016, decision of the BIA affirming a
February 10, 2015, decision of an Immigration Judge (“IJ”)
denying Wu’s application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Zhimiao Wu, No. A205 806 721 (B.I.A. May 31, 2016), aff’g
No. A205 806 721 (Immig. Ct. N.Y. City Feb. 10, 2015). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
We have reviewed the decisions of both the IJ and the BIA
“for the sake of completeness.” Wangchuck v. Dep’t of Homeland
Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
standards of review are well established. Y.C. v. Holder, 741
F.3d 324, 332 (2d Cir. 2013) (reviewing factual findings for
substantial evidence and questions of law de novo).
I. One-Year Bar
To be eligible for asylum, an alien must provide clear and
convincing evidence that his application for asylum was filed
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within one year of his arrival in the United States, or
demonstrate “either the existence of changed circumstances
which materially affect the applicant’s eligibility for asylum
or extraordinary circumstances” which prevented him from filing
an application within the one-year period. 8 U.S.C.
§ 1158(a)(2)(B), (D). This Court lacks jurisdiction to review
the agency’s denial of an asylum application as untimely unless
the petitioner raises a constitutional claim or question of law.
8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).
Wu has not raised a constitutional claim or question of law.
Wu argues that the agency failed to consider a letter from his
brother-in-law. But, the IJ simply gave diminished weight to
the letter because Wu’s brother-in-law did not testify or have
personal knowledge of Wu’s arrival date. The weight given to
the evidence is a factual determination not subject to review.
See Boluk v. Holder, 642 F.3d 297, 304 (2d Cir. 2011); Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 332 (2d Cir. 2006);
see also Y.C., 741 F.3d at 334 (“We defer to the agency’s
determination of the weight afforded to an alien’s documentary
evidence.”).
The IJ also found that Wu’s testimony was internally
inconsistent and inconsistent with his application. Wu argues
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that the IJ erred as a matter of law by not making an explicit
adverse credibility determination, and that he is entitled to
a presumption of credibility on appeal. This is not a question
of law because the IJ identified specific inconsistencies, and
concluded that the inconsistencies undermined Wu’s credibility
as to the timeliness of his application. See Zaman v. Mukasey,
514 F.3d 233, 237-38 (2d Cir. 2008) (concluding that IJ’s
specific reasons to cast doubt upon an applicant’s credibility
was “sufficient to qualify as an ‘explicit credibility
finding’”). Any challenge to inconsistency findings are
factual arguments not subject to review. See Xiao Ji Chen, 471
F.3d at 329, 333.
II. Well-Founded Fear
The agency alternatively denied asylum, as well as
withholding of removal and CAT relief on the ground that Wu did
not show a well-founded fear of persecution on account of his
practice of Christianity.1 In the absence of past persecution,
an applicant may establish eligibility for asylum by showing
a well-founded fear of future persecution. 8 C.F.R.
§ 1208.13(b)(2). A well-founded fear is “a subjective fear
that is objectively reasonable.” Dong Zhong Zheng v. Mukasey,
1 Wu does not press any family planning-based claims in this
Court.
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552 F.3d 277, 284 (2d Cir. 2009) (quoting Tambadou v. Gonzales,
446 F.3d 298, 302 (2d Cir. 2006)). An applicant, like Wu, who
is seeking asylum “based exclusively on activities undertaken
after his arrival in the United States” must show that
authorities in his country of origin are either aware of his
activities, or likely to become aware of his activities to
demonstrate a well-founded fear. Hongsheng Leng v. Mukasey,
528 F.3d 135, 138, 143 (2d Cir. 2008). An applicant may show
either that he would be singled out individually for
persecution, or that there is a pattern or practice of
persecution of persons similarly situated to him. Id. at 142;
see 8 C.F.R. § 1208.13(b)(2)(iii). Wu does not argue that
Chinese officials are actually aware of his Christian
activities in the United States. Therefore, he must
demonstrate that Chinese officials are likely to become aware
that he is a practicing Christian. Hongsheng Leng, 528 F.3d
at 143.
The agency reasonably concluded that Wu failed to establish
a well-founded fear of persecution as a Christian. Wu argues
that he will attend an underground church and proselytize in
public, and that the agency failed to consider the implications
of his intent to proselytize. In essence, Wu’s claim is that
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there is a pattern or practice of persecution of individuals
who attend underground churches and proselytize. The IJ
acknowledged “some amount of persecution for those who attend
or lead unaffiliated or underground churches.” However, the
IJ reasonably concluded that the country conditions evidence
did not show a pattern or practice of persecution given that
millions of Christians in China practice in unregistered
churches, their treatment varies by region, and some local
authorities approve of or do not interfere with unregistered
religious groups.
In light of the evidence that there is a large population
of Christians worshipping at unregistered churches, and the
lack of evidence of persecution in Wu’s home province, the
agency did not err in concluding that Wu did not establish an
objectively reasonable fear of future persecution in China.
See 8 C.F.R. § 1208.13(b)(2)(iii); Santoso v. Holder, 580 F.3d
110, 112 & n.1 (2d Cir. 2009) (denying petition where agency
considered background materials and rejected pattern or
practice claim because violence was not countrywide); see also
Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005)
(“In the absence of solid support in the record . . . [a] fear
is speculative at best.”).
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Because Wu was unable to satisfy his burden of proof for
asylum, his claims for withholding of removal and CAT relief
also fail; they “entail a greater likelihood of future
persecution than that required for the grant of asylum.” Lecaj
v. Holder, 616 F.3d 111, 119 (2d Cir. 2010).
For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in remaining part. 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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