17-2215 Chen v. Barr BIA Hom, IJ A206 103 550 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 15th day of April, two thousand nineteen. 5 6 PRESENT: 7 ROBERT D. SACK, 8 PETER W. HALL, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 WU XIN CHEN, AKA XIN CHEN WU, 14 Petitioner, 15 16 v. 17-2215 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Yee Ling Poon; Deborah 24 Niedermeyer, Law Office of Yee 25 Ling Poon, LLC, New York, NY. 26 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Greg D. Mack, 29 Senior Litigation Counsel; 1 Virginia L. Gordon, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Wu Xin Chen, a native and citizen of the
12 People’s Republic of China, seeks review of a June 22, 2017,
13 decision of the BIA affirming a December 1, 2016, decision of
14 an Immigration Judge (“IJ”) denying Chen’s application for
15 asylum, withholding of removal, and relief under the
16 Convention Against Torture (“CAT”). In re Wu Xin Chen, No.
17 A 206 103 550 (B.I.A. June 22, 2017), aff’g No. A 206 103 550
18 (Immig. Ct. N.Y. City Dec. 1, 2016). We assume the parties’
19 familiarity with the underlying facts and procedural history
20 in this case.
21 We have reviewed the IJ’s decision as modified and
22 supplemented by the BIA. Wala v. Mukasey, 511 F.3d 102, 105
23 (2d Cir. 2007). Because the BIA assumed credibility, the
24 adverse credibility determination is not before us. See Yan 2 1 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
2 applicable standards of review are well established. See
3 8 U.S.C. § 1252(b)(4)(B); Chuilu Liu v. Holder, 575 F.3d 193,
4 196 (2d Cir. 2009); Yanqin Weng v. Holder, 562 F.3d 510, 513
5 (2d Cir. 2009).
6 Ineffective Assistance of Counsel
7 The BIA did not err in rejecting Chen’s allegations of
8 ineffective assistance of counsel for failure to comply with
9 Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1998). Lozada
10 requires an alien to file an affidavit detailing his agreement
11 with former counsel and submit proof that he notified former
12 counsel and the proper disciplinary authority of his
13 allegations. 19 I. & N. Dec. at 639. We require
14 “substantial compliance,” but not “slavish adherence to the
15 requirements.” Yi Long Yang v. Gonzales, 478 F.3d 133, 143-
16 44 (2d Cir. 2007). Failure to comply substantially with the
17 Lozada requirements constitutes forfeiture of an ineffective
18 assistance claim. See Jian Yun Zheng v. U.S. Dep’t of
19 Justice, 409 F.3d 43, 46-47 (2d Cir. 2005). Substantial
20 compliance is required “to deter meritless claims and to
21 provide a basis for determining whether counsel’s assistance 3 1 was in fact ineffective.” Twum v. INS, 411 F.3d 54, 59 (2d
2 Cir. 2005).
3 Chen contends that his prior counsel was ineffective for
4 failing to explain to the IJ why documents were untimely
5 filed; to file a motion to extend the time for filing
6 evidence; and to timely file country conditions evidence.1
7 As to that last claim, he argues that he is exempt from
8 complying with Lozada because the ineffectiveness was clear
9 on the face of the record. Chen’s former counsel admitted
10 fault for the untimely submission of country conditions
11 evidence. Even if Chen were not bound by Lozada, however,
12 he cannot show the prejudice needed to state an ineffective
13 assistance claim because the IJ considered evidence of
14 country conditions notwithstanding Chen’s counsel’s failure
15 to file it on time. See Rashid v. Mukasey, 533 F.3d 127, 131
1 We decline to consider the remaining ineffective assistance claims regarding the translation and the IJ’s questioning because they were not exhausted before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122-24 (2d Cir. 2007) (describing issue exhaustion as mandatory); Arango- Aradondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994) (holding that petitioner must first raise ineffective assistance of counsel claim with the BIA). 4 1 (2d Cir. 2008) (requiring showing of prejudice to prevail on
2 an ineffective assistance claim).
3 As to the first two claims, Chen relies on Yi Long Yang
4 to argue that he is exempt from Lozada’s requirements. But
5 his reliance is misplaced inasmuch as Lozada was inapplicable
6 in that case because counsel had already been disbarred. See
7 Yi Long Yang, 478 F.3d at 143. Chen makes no such allegation
8 here. Chen was therefore required to comply with Lozada as
9 to these allegations. See Jian Yun Zheng, 409 F.3d at 46-
10 47.
11 Corroboration
12 “The testimony of the applicant may be sufficient to
13 sustain the applicant’s burden without corroboration, but
14 only if the applicant satisfies the trier of fact that the
15 applicant’s testimony is credible, is persuasive, and refers
16 to specific facts sufficient to demonstrate that the
17 applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see
18 also Chuilu Liu, 575 F.3d at 196-97. “In determining whether
19 the applicant has met [his] burden, the trier of fact may
20 weigh the credible testimony along with other evidence of
21 record. Where the trier of fact determines that the 5 1 applicant should provide evidence that corroborates otherwise
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17-2215 Chen v. Barr BIA Hom, IJ A206 103 550 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 15th day of April, two thousand nineteen. 5 6 PRESENT: 7 ROBERT D. SACK, 8 PETER W. HALL, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 WU XIN CHEN, AKA XIN CHEN WU, 14 Petitioner, 15 16 v. 17-2215 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Yee Ling Poon; Deborah 24 Niedermeyer, Law Office of Yee 25 Ling Poon, LLC, New York, NY. 26 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Greg D. Mack, 29 Senior Litigation Counsel; 1 Virginia L. Gordon, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Wu Xin Chen, a native and citizen of the
12 People’s Republic of China, seeks review of a June 22, 2017,
13 decision of the BIA affirming a December 1, 2016, decision of
14 an Immigration Judge (“IJ”) denying Chen’s application for
15 asylum, withholding of removal, and relief under the
16 Convention Against Torture (“CAT”). In re Wu Xin Chen, No.
17 A 206 103 550 (B.I.A. June 22, 2017), aff’g No. A 206 103 550
18 (Immig. Ct. N.Y. City Dec. 1, 2016). We assume the parties’
19 familiarity with the underlying facts and procedural history
20 in this case.
21 We have reviewed the IJ’s decision as modified and
22 supplemented by the BIA. Wala v. Mukasey, 511 F.3d 102, 105
23 (2d Cir. 2007). Because the BIA assumed credibility, the
24 adverse credibility determination is not before us. See Yan 2 1 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
2 applicable standards of review are well established. See
3 8 U.S.C. § 1252(b)(4)(B); Chuilu Liu v. Holder, 575 F.3d 193,
4 196 (2d Cir. 2009); Yanqin Weng v. Holder, 562 F.3d 510, 513
5 (2d Cir. 2009).
6 Ineffective Assistance of Counsel
7 The BIA did not err in rejecting Chen’s allegations of
8 ineffective assistance of counsel for failure to comply with
9 Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1998). Lozada
10 requires an alien to file an affidavit detailing his agreement
11 with former counsel and submit proof that he notified former
12 counsel and the proper disciplinary authority of his
13 allegations. 19 I. & N. Dec. at 639. We require
14 “substantial compliance,” but not “slavish adherence to the
15 requirements.” Yi Long Yang v. Gonzales, 478 F.3d 133, 143-
16 44 (2d Cir. 2007). Failure to comply substantially with the
17 Lozada requirements constitutes forfeiture of an ineffective
18 assistance claim. See Jian Yun Zheng v. U.S. Dep’t of
19 Justice, 409 F.3d 43, 46-47 (2d Cir. 2005). Substantial
20 compliance is required “to deter meritless claims and to
21 provide a basis for determining whether counsel’s assistance 3 1 was in fact ineffective.” Twum v. INS, 411 F.3d 54, 59 (2d
2 Cir. 2005).
3 Chen contends that his prior counsel was ineffective for
4 failing to explain to the IJ why documents were untimely
5 filed; to file a motion to extend the time for filing
6 evidence; and to timely file country conditions evidence.1
7 As to that last claim, he argues that he is exempt from
8 complying with Lozada because the ineffectiveness was clear
9 on the face of the record. Chen’s former counsel admitted
10 fault for the untimely submission of country conditions
11 evidence. Even if Chen were not bound by Lozada, however,
12 he cannot show the prejudice needed to state an ineffective
13 assistance claim because the IJ considered evidence of
14 country conditions notwithstanding Chen’s counsel’s failure
15 to file it on time. See Rashid v. Mukasey, 533 F.3d 127, 131
1 We decline to consider the remaining ineffective assistance claims regarding the translation and the IJ’s questioning because they were not exhausted before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122-24 (2d Cir. 2007) (describing issue exhaustion as mandatory); Arango- Aradondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994) (holding that petitioner must first raise ineffective assistance of counsel claim with the BIA). 4 1 (2d Cir. 2008) (requiring showing of prejudice to prevail on
2 an ineffective assistance claim).
3 As to the first two claims, Chen relies on Yi Long Yang
4 to argue that he is exempt from Lozada’s requirements. But
5 his reliance is misplaced inasmuch as Lozada was inapplicable
6 in that case because counsel had already been disbarred. See
7 Yi Long Yang, 478 F.3d at 143. Chen makes no such allegation
8 here. Chen was therefore required to comply with Lozada as
9 to these allegations. See Jian Yun Zheng, 409 F.3d at 46-
10 47.
11 Corroboration
12 “The testimony of the applicant may be sufficient to
13 sustain the applicant’s burden without corroboration, but
14 only if the applicant satisfies the trier of fact that the
15 applicant’s testimony is credible, is persuasive, and refers
16 to specific facts sufficient to demonstrate that the
17 applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see
18 also Chuilu Liu, 575 F.3d at 196-97. “In determining whether
19 the applicant has met [his] burden, the trier of fact may
20 weigh the credible testimony along with other evidence of
21 record. Where the trier of fact determines that the 5 1 applicant should provide evidence that corroborates otherwise
2 credible testimony, such evidence must be provided unless the
3 applicant does not have the evidence and cannot reasonably
4 obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii).
5 It was reasonable for the IJ to require evidence to
6 corroborate Chen’s testimony–which was offered to establish
7 that he had been persecuted while living in China-because
8 Chen’s testimony was vague and lacking in detail. See
9 8 U.S.C. § 1158(b)(1)(B)(i); see also Chuilu Liu, 575 F.3d at
10 196-97. And the agency properly identified the missing
11 evidence. See Chuilu Liu, 575 F.3d at 198-99. The IJ noted
12 that Chen failed to corroborate his testimony offered to
13 establish past persecution. Chen testified that he was
14 arrested for distributing church flyers while in China. But
15 Chen did not provide timely filed affidavits from his father,
16 mother, or the other church member whom he was allegedly
17 arrested with. Nor did Chen corroborate his testimony that
18 when he was in China, his parents were forced to pay a bribe,
19 that he was charged with being a member of a cult, or that
20 the police came to his home looking for him after he left for
21 the United States. Chen did not establish that corroborating 6 1 evidence from his family and fellow arrestee was unavailable,
2 and his untimely submission of a letter from his father
3 indicates that he could have obtained more detailed
4 statements at an earlier date. See id. at 198; 8 U.S.C.
5 § 1252(b)(4) (“No court shall reverse a determination made by
6 a trier of fact with respect to the availability of
7 corroborating evidence . . . unless . . . a reasonable trier
8 of fact is compelled to conclude that such corroborating
9 evidence is unavailable.”). Chen asserted that a letter from
10 the church member he was arrested with and evidence that he
11 was charged with being part of a cult and that his parents
12 had the funds to pay a bribe, was not available, but he did
13 not explain why. In sum, given Chen’s vague testimony and
14 the lack of reliable corroboration, the agency did not err in
15 finding that Chen failed to satisfy his burden of proof as to
16 his claim of past persecution. See 8 U.S.C.
17 § 1158(b)(1)(B)(ii).
18 Well-Founded Fear of Future Persecution
19 Absent past persecution, an alien may establish
20 eligibility for asylum by demonstrating a well-founded fear
21 of future persecution, 8 C.F.R. § 1208.13(b)(2), which must 7 1 be both subjectively credible and objectively reasonable,
2 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
3 To demonstrate a well-founded fear, an applicant must show
4 either a reasonable possibility that he would be “singled
5 out” for persecution or that the country of removal has a
6 “pattern or practice” of persecuting individuals “similarly
7 situated” to him. 8 C.F.R. § 1208.13(b)(2)(iii).
8 Furthermore, where a claim is based on activities undertaken
9 solely in the United States, “an alien must make some showing
10 that authorities in his country of nationality are either
11 aware of his activities or likely to become aware of his
12 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
13 (2d Cir. 2008).
14 The IJ did not err in finding that Chen’s practice of
15 Christianity in the United States did not establish a well-
16 founded fear of persecution. Chen did not show a pattern or
17 practice of persecution of similarly situated individuals or
18 that the Chinese government was or would likely become aware
19 of his practice of Christianity in the United States. The
20 2015 State Department International Religious Freedom Report
21 states that, “[i]n some parts of the country . . . local 8 1 authorities allowed or at least did not interfere with the
2 activities of unregistered religious groups,” and as the IJ
3 noted, the report does not reflect persecution in Chen’s home
4 province. Where treatment of Christians varies by region,
5 the agency does not err by requiring evidence specific to an
6 applicant’s home region. See Jian Hui Shao v. Mukasey, 546
7 F.3d 138, 165-66, 174 (2d Cir. 2008) (finding that the BIA
8 does not err in requiring localized evidence of persecution
9 when the record reflected wide variances in how policies are
10 understood and enforced throughout China). Furthermore, the
11 IJ reasonably concluded that although a State Department
12 report shows some arrest and mistreatment of members of
13 unregistered churches, Chinese authorities primarily target
14 church leaders. Accordingly, the agency did not err in
15 concluding that Chen failed to demonstrate systemic or
16 pervasive persecution of similarly situated Christians as
17 needed to demonstrate a pattern and practice of persecution
18 in China. See 8 C.F.R. § 1208.13(b)(2)(iii); see also
19 Santoso v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009)
20 (denying petition where agency considered background
21 materials and rejected pattern or practice claim); In re A- 9 1 M-, 23 I. & N. Dec. 737, 741 (BIA 2005) (recognizing that a
2 pattern or practice of persecution is the “systemic or
3 pervasive” persecution of a group).
4 Furthermore, the agency did not err in finding that Chen
5 failed to establish that the Chinese government was, or would
6 likely become aware of his practice of Christianity. There
7 was no evidence that the Chinese government was aware of his
8 practice of Christianity in the United States. And it is
9 also unlikely that the Chinese government would become aware
10 of his practice once he reaches Chinese soil. There are tens
11 of millions of unregistered practitioners of Christianity in
12 China, and Chen did not establish that there was significant
13 persecution of Christians in his home province. See Jian Hui
14 Shao, 546 F.3d at 149-50, 165-66; Hongsheng Leng, 528 F.3d at
15 143.
16 For these reasons, the agency did not err in finding that
17 Chen failed to satisfy his burden of establishing past
18 persecution or an objectively reasonable fear of future
19 persecution on account of his religion. See Chuilu Liu, 575
20 F.3d at 196-98; see also Hongsheng Leng, 528 F.3d at 142-43.
21 That finding is dispositive of asylum, withholding of 10 1 removal, and CAT relief because all three claims were based
2 on the same factual predicate. See Lecaj v. Holder, 616 F.3d
3 111, 119 (2d Cir. 2010).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk of Court 15