Xu v. Rosen ( 2021 )

18-3808
Xu v. Rosen
BIA
Donnolo, IJ
A206 432 281
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 13th day of January, two thousand twenty-one.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 WILLIAM J. NARDINI,
10 Circuit Judges.
11 _____________________________________
12
13 CHUANXIONG XU,
14 Petitioner,
15
16 v. 18-3808
17 NAC
18 JEFFREY A. ROSEN, ACTING UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Adedayo Idowu, Esq., Law Offices
24 of Adedayo O Idowu, New York, NY.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General; Nancy
28 Friedman , Senior Litigation
1 Counsel; Kevin J. Conway, Trial
2 Attorney, Office of Immigration
3 Litigation, United States
4 Department of Justice, Washington,
5 DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Chuanxiong Xu, a native and citizen of the
11 People’s Republic of China, seeks review of a November 29,
12 2018, decision of the BIA affirming a November 28, 2017,
13 decision of an Immigration Judge (“IJ”) denying asylum,
14 withholding of removal, and protection under the Convention
15 Against Torture (“CAT”). In re Chuanxiong Xu, No. A 206 432
16 281 (B.I.A. Nov. 29, 2018), aff’g No. A 206 432 281 (Immig.
17 Ct. New York City Nov. 28, 2017). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 in this case.
20 We have reviewed the IJ’s decision as modified and
21 supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of
22 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
23 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
24 standards of review are well established. See 8 U.S.C.
2
1 § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195 (2d Cir.
2 2014) (reviewing factual findings for substantial evidence
3 and questions of law de novo).
4 An asylum applicant must show that he has suffered past
5 persecution, or has a well-founded fear of future
6 persecution, on account of race, religion, nationality,
7 membership in a particular social group, or political
8 opinion. See 8 C.F.R. § 1208.13(b). Where, as here, an
9 applicant did not suffer past persecution, he has the burden
10 to establish a well-founded fear of future persecution. Id.11 § 1208.13(b)(1). To establish a well-founded fear of future
12 persecution, an applicant must “present credible testimony
13 that he subjectively fears persecution and establish that his
14 fear is objectively reasonable.” Ramsameachire v. Ashcroft,
15 357 F.3d 169, 178 (2d Cir. 2004). A fear may be objectively
16 reasonable “even if there is only a slight, though
17 discernible, chance of persecution.” Diallo v. INS, 232 F.3d
18 279, 284 (2d Cir. 2000). However, a fear is not objectively
19 reasonable if it lacks “solid support” in the record and is
20 merely “speculative at best.” Jian Xing Huang v. U.S. INS,
21 421 F.3d 125, 129 (2d Cir. 2005). “In determining whether
3
1 the applicant has met the applicant’s burden, the trier of
2 fact may weigh the credible testimony along with other
3 evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(ii).
4 The agency did not err in concluding that Xu failed to
5 meet his burden to show an objectively reasonable fear of
6 future persecution as a Christian. As an initial matter, Xu
7 challenges the agency’s adverse credibility finding
8 throughout his brief, but the only credibility finding was
9 the IJ’s conclusion that it was not plausible that the police
10 could tie Xu to an unauthorized church merely by seeing his
11 face as he fled during a raid. The BIA did not explicitly
12 address whether this testimony was implausible, instead
13 holding that the allegation was insufficient to show the
14 Chinese government was aware of Xu’s religious practices.
15 Xu’s escape from this raid was his only interaction with
16 authorities, he did not mention that the police visited his
17 home until re-direct, and he did not explain how the police
18 could have known who he was just by seeing his face.
19 Moreover, his only evidence to confirm that the police visited
20 his home was a letter from his mother, which the agency was
21 not required to credit. See Y.C. v. Holder, 741 F.3d 324,
4
1 332, 334 (2d Cir. 2013) (holding that “[w]e generally
2 defer to the agency’s determination of the weight afforded to
3 an alien’s documentary evidence” and upholding BIA’s decision
4 not to credit letter from applicant’s spouse in
5 China); Matter of H-L-H-& Z-Y-Z-, 25 I. & N. Dec. 209, 215
6 (BIA 2010) (holding that “letters from relatives and friends
7 . . . do not provide substantial support” for claim of future
8 persecution because “authors of the letters are interested
9 witnesses who were not subject to cross-examination”), rev’d
10 on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d
11 Cir. 2012).
12 Xu’s argument that the agency ignored a letter from
13 Encheng Li, a fellow practitioner who was arrested during the
14 raid, is misplaced. Xu asserts that Li’s letter shows how
15 the police identified him because Li stated that the “police
16 asked [him] to . . . provide a name list of all the attendees
17 of the gathering.” Certified Administrative Record at 266.
18 However, Xu never mentioned this letter or Li during his
19 testimony and, although he referenced Li’s letter on appeal
20 to the BIA, he did not argue that Li gave the authorities his
21 name. And the letter itself is unclear: Li states that the
5
1 police asked him for names, but he does not state that he
2 gave them any names or that he gave them Xu’s name.
3 Finally, no other evidence supports his claim. Xu
4 testified that his parents practice Christianity in an
5 unauthorized church in China without harm. He presented no
6 documentary evidence of conditions for Christians in China.
7 And the State Department’s 2016 report on religious freedom
8 in China of which the IJ took administrative notice reflects
9 varied enforcement of religious restrictions and does not
10 identify any persecution of Christians in Fujian Province.
11 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 142, 149, 165 (2d
12 Cir. 2008) (finding no error in the agency’s requirement that
13 an applicant demonstrate a well-founded fear of persecution
14 specific to his local area when persecutory acts vary
15 according to locality).
16 Xu’s failure to demonstrate the objectively reasonable
17 fear of future harm in China as required to state an asylum
18 claim, “necessarily” precludes him from meeting the higher
19 standards for withholding of removal and CAT relief. See
20 Ramsameachire, 357 F.3d at 178; Lecaj v. Holder, 616 F.3d
21 111, 119–20 (2d Cir. 2010).
6
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
7