Liu v. Garland ( 2021 )

19-896
Liu v. Garland
BIA
Poczter, IJ
A205 610 836
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 30th day of November, two thousand twenty-one.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 JINBIN LIU,
14 Petitioner,
15
16 v. 19-896
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Adedayo O. Idowu, Esq., New York,
24 NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant
27 Attorney General; Mary Jane
28 Candaux, Assistant Director;
29 Stephen Finn, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of
32 Justice, Washington, DC.
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
4 is DENIED.
5 Petitioner Jinbin Liu, a native and citizen of the
6 People’s Republic of China, seeks review of a March 13, 2019,
7 decision of the BIA affirming a July 10, 2017, decision of an
8 Immigration Judge (“IJ”) denying him asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Jinbin Liu, No. A205 610 836 (B.I.A. Mar. 13,
11 2019), aff’g No. A205 610 836 (Immig. Ct. N.Y. City July 10,
12 2017). We assume the parties’ familiarity with the
13 underlying facts and procedural history.
14 We have reviewed both the IJ’s and the BIA’s decisions
15 “for the sake of completeness.” Wangchuck v. Dep’t of
16 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
17 applicable standards of review are well established. Y.C.
18 v. Holder, 741 F.3d 324, 332 (2d Cir. 2013). The agency did
19 not err in finding that, although credible, Liu failed to
20 persuasively establish a well-founded fear of persecution on
21 account of his pro-democracy activities in the United States.
22 See 8 U.S.C. § 1158(b)(1)(B)(ii) (“The testimony of the
2
1 applicant may be sufficient to sustain the applicant’s burden
2 without corroboration, but only if the applicant satisfies
3 the trier of fact that the applicant’s testimony is credible,
4 is persuasive, and refers to specific facts sufficient to
5 demonstrate that the applicant is a refugee.”).
6 Absent past persecution, an applicant may establish
7 eligibility for asylum by demonstrating a well-founded fear
8 of future persecution, 8 C.F.R. § 1208.13(b)(2), “which
9 requires that the alien present credible testimony that he
10 subjectively fears persecution and establish that his fear is
11 objectively reasonable,” Ramsameachire v. Ashcroft, 357 F.3d
12 169, 178 (2d Cir. 2004). To demonstrate an objectively
13 reasonable fear, an applicant must show either that he would
14 be “singled out” for persecution or that the country of
15 removal has a “pattern or practice” of persecuting “similarly
16 situated” individuals. 8 C.F.R. § 1208.13(b)(2)(iii).
17 “[I]n order to establish eligibility for relief based
18 exclusively on activities undertaken after his arrival in the
19 United States, an alien must make some showing that
20 authorities in his country of nationality are (1) aware of
21 his activities or (2) likely to become aware of his
22 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 138
3
1 (2d Cir. 2008).
2 The agency reasonably declined to credit an unsworn
3 letter from Liu’s wife asserting that Chinese officials know
4 about Liu’s pro-democracy activities in the United States
5 because the letter was written by an interested witness who
6 was not subject to cross-examination. See Y.C., 741 F.3d at
7 334. And the agency was not compelled to conclude that Liu’s
8 testimony in this regard was particularly persuasive. See
9 8 U.S.C. § 1158(b)(1)(B)(ii); Hongsheng Leng, 528 F.3d at
10 143. Further, we have found “most unlikely” the “suggestion
11 that the Chinese government is aware of every anti-Communist
12 or pro-democracy piece of commentary published online,” and
13 have deemed speculative the assertion that the Chinese
14 government will likely discover political activities in the
15 United States and articles published online years before a
16 noncitizen is removed. Y.C., 741 F.3d at 334 (citing Jian
17 Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In
18 the absence of solid support in the record . . . [an
19 applicant’s] fear is speculative at best.”)). Accordingly,
20 the agency reasonably concluded that Liu failed to establish
21 that Chinese officials are aware of or likely to become aware
22 of Liu’s pro-democracy activities. See id.; Hongsheng Leng,
4
1 528 F.3d at 138.
2 Alternatively, the agency reasonably found that Liu
3 failed to establish that similarly situated individuals face
4 persecution because “[t]he record is silent as to whether the
5 Chinese government views domestic pro-democracy advocates
6 differently from Chinese nationals who espouse pro-democracy
7 ideals abroad.” Y.C., 741 F.3d at 335.
8 Because Liu failed to persuasively demonstrate that
9 authorities are aware or are likely to become aware of his
10 political activities in the United States and failed to show
11 an objectively reasonable fear of persecution on account of
12 those activities, the agency reasonably concluded that he
13 failed to establish a well-founded fear of persecution. See
14 Y.C., 741 F.3d at 334–35; Hongsheng Leng, 528 F.3d at 142.
15 That finding was dispositive of asylum, withholding of
16 removal, and CAT relief because all three claims were based
17 on the same factual predicate.* See Paul v. Gonzales, 444
18 F.3d 148, 156-57 (2d Cir. 2006).
* The BIA and Government incorrectly conclude that Liu waived
his CAT claim before the BIA. The IJ denied CAT relief
because Liu failed to satisfy the lower burden of proving the
well-founded fear required for asylum and thus Liu’s
challenge to that finding on appeal to the BIA necessarily
included a challenge to the denial of CAT relief.
5
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
6