Hua v. Wilkinson ( 2021 )

19-493
Hua v. Wilkinson
BIA
Hom, IJ
A208 154 299
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
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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 18th day of February, two thousand twenty-one.
PRESENT:
ROSEMARY S. POOLER,
RICHARD J. SULLIVAN,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
CHEN HUA,
Petitioner,
v. 19-493
NAC
ROBERT M. WILKINSON, ACTING
UNITED STATES ATTORNEY GENERAL,
Respondent. 1
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, NY.
FOR RESPONDENT: [VACANT], Assistant Attorney
General; Anthony P. Nicastro,
Assistant Director, Patricia E.
Bruckner, Trial Attorney, Office
1Pursuant to Fed. R. App. P. 43(c)(2), Robert M. Wilkinson
is automatically substituted as Acting Attorney General.
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 DENIED.
Petitioner Chen Hua, a native and citizen of the People’s
Republic of China, seeks review of a February 8, 2019 decision
of the BIA affirming a November 20, 2017 decision of an
Immigration Judge (“IJ”) denying his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Chen Hua, No. A208 154 299
(B.I.A. Feb. 8, 2019), aff’g No. A208 154 299 (Immig. Ct.
N.Y. City Nov. 20, 2017). We assume the parties’ familiarity
with the underlying facts and procedural history.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA. See Xue Hong Yang
v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
. “We review the agency’s factual findings, including
adverse credibility findings, under the substantial evidence
standard, which requires that they be supported by
reasonable, substantial and probative evidence in the record
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when considered as a whole.” Hong Fei Gao v. Sessions, 891
F.3d 67, 76 (2d Cir. 2018) (internal quotation marks omitted);
see 8 U.S.C. § 1252(b)(4). Hua alleged past persecution on
account of his attendance at an unregistered church in China
and a fear of future persecution on that basis and on account
of his continued practice of Christianity in the United
States. We find no error in the agency’s denial of relief.
Credibility
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on . . . the consistency between the applicant’s
. . . written and oral statements . . . , the internal
consistency of each statement, the consistency of such
statements with other evidence of record . . . , and any
inaccuracies or falsehoods in such statements, without regard
to whether an inconsistency, inaccuracy, or falsehood goes to
the heart of the applicant’s claim, or any other relevant
factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). Substantial
evidence supports the adverse credibility determination given
inconsistencies between Hua’s testimony and his letter in
support of his brother’s asylum case and between his
application and testimony.
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First, the agency reasonably relied on the inconsistency
between Hua’s testimony and his letter regarding when he
became aware that attending an unregistered church was
prohibited. See 8 U.S.C. § 1158(b)(1)(B)(iii). Hua
testified that when he first attended an unregistered church,
he did not know that his participation could be met with
resistance from the Chinese police. However, Hua wrote in
his 2015 letter in support of his brother’s asylum claim that
in December 2013, the Chinese police called and told him and
his grandmother that his brother had been arrested for being
involved in an unregistered church. The IJ was not required
to credit Hua’s explanation that he was unaware of the details
of his brother’s arrest given that Hua’s letter also stated
that prior to his brother’s arrest, his brother occasionally
told him about the family church, the police told him and his
grandmother that his brother had joined an unregistered
church, he accompanied his grandmother to pick up his brother
upon his brother’s release, and he accompanied his brother to
the police station to report after his brother’s release.
See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
petitioner must do more than offer a plausible explanation
for his inconsistent statements to secure relief; he must
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demonstrate that a reasonable fact-finder would be compelled
to credit his testimony.” (internal quotation marks
omitted)).
Second, the agency reasonably determined that Hua was
inconsistent as to whether he lived with his maternal
grandmother and whether she knew about his arrest and
detention. Hua’s application and initial testimony provided
that he was an only child raised by his paternal grandparents.
He made no mention of a brother or that he had written a
letter in support of that brother’s asylum application.
However, in his letter, he stated that he and his brother
“relied on [their] maternal grandparents to live.” Certified
Administrative Record at 182. When confronted with this
inconsistency, he stated that he had stayed with his maternal
grandmother for a month after he was released from detention
in 2015. Hua also stated that his maternal grandmother did
not know about his alleged persecution. However, when asked
how his grandmother could be unaware of his persecution while
taking care of his injuries, he explained, “I only told her
that I was beaten by someone. I didn’t tell her the detailed
situation. So I was, I did not want her to worry.” Id. at
147. The IJ was not compelled to credit his explanation,
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because the letter implied that both he and his brother lived
with his maternal grandparents and it omitted any reference
to his paternal grandparents or the fact that he and his
brother did not live together. See Majidi, 430 F.3d at 80;
Siewe v. Gonzales, 480 F.3d 160, 166–68 (2d Cir. 2007)
(deferring to the IJ where there are two permissible views of
the evidence).
Third, the agency reasonably relied on an inconsistency
between Hua’s testimony and his letter as to who introduced
him to Christianity. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 165–67 (2d Cir. 2008). Hua
testified that he was first introduced to Christianity and
unregistered churches in 2014 when a friend preached the
gospel to him. However, in his letter, he stated that his
brother told him about unregistered churches and preached to
him in 2013. The IJ was not required to accept Hua’s
explanation that he had not paid attention when his brother
discussed Christianity, and that he thought he had to testify
as to when he “officially” learned about Christianity and the
church. See Majidi, 430 F.3d at 80.
The agency also reasonably faulted Hua for omitting from
his application that he had almost been arrested in one
6
incident prior to his January 2015 arrest. Although
“omissions are less probative of credibility than
inconsistencies created by direct contradictions in evidence
and testimony,” the agency reasonably relied on this omission
because Hua’s application explained how church provided him
a sense of comfort and yet failed to mention an initial raid
that occurred very shortly after he began attending church.
Hong Fei Gao, 891 F.3d at 78 (internal quotation marks
omitted). Accordingly, this initial incident is a “fact[] .
. . that a credible petitioner would reasonably have been
expected to disclose under the relevant circumstances.” Id.
at 78–79.
Given these inconsistences, the agency’s adverse
credibility determination is supported by substantial
evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
534 F.3d at 165–67.
Future Persecution
Absent past persecution, an applicant may prevail on an
asylum claim by demonstrating that “he subjectively fears
persecution and . . . that his fear is objectively
reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178
(2d Cir. 2004). An applicant may make this showing by
7
establishing either a “reasonable possibility he or she would
be singled out individually for persecution,” or a “pattern
or practice” of persecution of “persons similarly situated.”
8 C.F.R. § 1208.13(b)(2)(iii); see also Y.C. v. Holder, 741
F.3d 324, 332 (2d Cir. 2013). Because the agency found that
Hua was not credible as to past events, his claim of future
persecution was based solely on his practice of Christianity
in the United States. Where a claim is based on activities
undertaken after the applicant’s arrival in the United
States, this requires “some showing that authorities in his
country of nationality are (1) aware of his activities or
(2) likely to become aware of his activities.” Hongsheng
Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008).
Although the agency credited Hua’s claim that he
practices Christianity in the United States, it reasonably
concluded that he did not have an objectively reasonable fear
of future persecution on that basis. Hua did not allege that
authorities were aware of his church attendance in the United
States, nor did the country conditions establish a pattern or
practice of persecution such that he could show his practice
would likely be discovered. See Jian Xing Huang v. U.S. INS,
421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid
8
support in the record . . . [a] fear is speculative at
best.”). The IJ took administrative notice of a 2016 State
Department Report that mainly reported incidents involving
pastoral officials and church leaders. Hua testified that
he never held any religious office, and he provided no
evidence to establish that Chinese authorities would give the
same attention to his activities as a member of a church.
Moreover, the report reflected significant regional variation
in the treatment of unsanctioned religious groups in China,
and thus did not establish a pattern or practice of
persecution of unregistered church members in Hua’s native
Fujian Province. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
149, 169–70 (2d Cir. 2008) (finding no error in the agency’s
requirement that an applicant demonstrate a well-founded fear
of persecution specific to applicant’s region when country
conditions reflects regional variation in enforcement of
policies).
In sum, Hua did not meet his burden for asylum because
he did not present credible evidence that he suffered past
harm or objective evidence that he was at risk of being
singled out for future harm or that there is a pattern or
practice of persecution of similarly situated Christians.
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See 8 U.S.C. § 1158(b)(1)(B)(iii); 8 C.F.R. § 1208.13(b)(1)–
(2). Because Hua failed to meet his burden for asylum, he
“necessarily” failed to meet the higher standards for
withholding of removal and CAT relief. See Lecaj v. Holder,
616 F.3d 111, 119–20 (2d Cir. 2010).
For the foregoing reasons, the petition for review is
DENIED. Hua’s pending motion for a stay of removal is DENIED
as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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