17-120 Sun v. Whitaker BIA Loprest, IJ A205 618 941
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 4th day of January, two thousand nineteen. 5 6 PRESENT: 7 JON. O. NEWMAN, 8 REENA RAGGI, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 MENG YUAN SUN, 14 Petitioner, 15 16 v. 17-120 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Meer M. M. Rahman, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting 26 Assistant Attorney General; 27 Nancy E. Friedman, Senior 28 Litigation Counsel; Sharon M. 29 Clay, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DISMISSED IN PART and DENIED IN PART.
9 Petitioner Meng Yuan Sun, a native and citizen of the
10 People’s Republic of China, seeks review of a BIA decision
11 affirming the denial of Sun’s application for asylum,
12 withholding of removal, and relief under the Convention
13 Against Torture (“CAT”). In re Meng Yuan Sun, No. A205 618
14 941 (B.I.A. Dec. 19, 2016), aff’g No. A205 618 941 (Immig.
15 Ct. N.Y. City Mar. 11, 2016). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 in this case.
18 Under the circumstances of this case, we have reviewed
19 the decisions of both the Immigration Judge (“IJ”) and the
20 BIA “for the sake of completeness,” Wangchuck v. Dep’t of
21 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), applying
22 well established standards of review, see 8 U.S.C. §
23 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
24 Cir. 2009).
2 1 I. Timeliness of the Asylum Application
2 The agency denied Sun’s October 2012 asylum application
3 as untimely, finding that it was filed more than a year
4 after his 2008 arrival in the United States, and not within
5 a “reasonable period” following Sun’s January 2012 “changed
6 circumstances.” See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. §
7 1208.4(4). In January 2012, Sun stopped working in his
8 field of study, causing his legal status to expire. See 8
9 C.F.R. § 214.2(f)(10). Separately, but about the same time,
10 Sun began attending church and converted to Christianity.
11 The agency concluded that Sun was unreasonable in delaying
12 to file his application 10 months after his changed
13 circumstances.
14 Our jurisdiction to review the agency’s determination
15 of untimeliness is limited to “constitutional claims or
16 questions of law." See 8 U.S.C. § 1252(a)(2)(D). Sun’s
17 petition raises neither.
18 Instead, Sun challenges the agency’s factual findings,
19 arguing that his legal status continued through July 2012,
20 and that he converted to Christianity only in August 2012,
21 making his asylum application in October timely. This
22 argument “merely quarrels over the correctness of the
3 1 [agency’s] factual findings or justification for the
2 discretionary choices,” which we lack jurisdiction to
3 review. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
4 315, 329 (2d Cir. 2006). Because Sun has identified no
5 constitutional or legal error, we dismiss the petition as
6 it relates to asylum application.
7 II. Merits
8 Reviewing the agency’s factual findings for “substantial
9 evidence” and its “conclusions of law” de novo, see Niang v.
10 Holder, 762 F.3d 251, 253 (2d Cir. 2014), we deny the
11 remainder of Sun’s petition, identifying no error in the
12 agency’s determination that Sun failed to demonstrate
13 eligibility for asylum, and, therefore, necessarily failed to
14 meet the higher burden for withholding of removal and CAT
15 relief. See Y.C. v. Holder, 741 F.3d 324, 335 (2d Cir. 2013).
16 Asylum eligibility can be established by a well-founded
17 fear of persecution, which is a “subjective fear that is
18 objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552
19 F.3d 277, 284 (2d Cir. 2009) (internal quotation marks
20 omitted); see 8 U.S.C. § 1101(a)(42); 8 C.F.R.
21 § 1208.13(b)(2); see also Y.C., 741 F.3d at 332 (“For an
22 asylum claim, the applicant must show a reasonable
4 1 possibility of future persecution.” (internal quotation
2 marks omitted)). An applicant can make that showing in two
3 ways: (1) by demonstrating that he “‘would be singled out
4 individually for persecution’ if returned,” or (2) by
5 proving the existence of a “‘pattern or practice in
6 [the] . . . country of nationality . . . of persecution of
7 a group of persons similarly situated to the applicant’ and
8 establishing his or her ‘own inclusion in, and
9 identification with, such group.’” Y.C., 741 F.3d at 332
10 (quoting 8 C.F.R. § 1208.13(b)(2)(iii)). “[I]n order to
11 establish eligibility for relief based exclusively on
12 activities undertaken after . . . arrival in the United
13 States, an alien must make some showing that authorities in
14 his country of nationality are (1) aware of his activities
15 or (2) likely to become aware of his activities.” Hongsheng
16 Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008).
17 Here, substantial evidence supports the agency’s
18 conclusion that Sun failed to show a reasonable possibility
19 that he would be singled out for persecution. See id.; Jian
20 Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In
21 the absence of solid support in the record,” a fear of
22 persecution is not well founded and “is speculative at
5 1 best.”).
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17-120 Sun v. Whitaker BIA Loprest, IJ A205 618 941
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 4th day of January, two thousand nineteen. 5 6 PRESENT: 7 JON. O. NEWMAN, 8 REENA RAGGI, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 MENG YUAN SUN, 14 Petitioner, 15 16 v. 17-120 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Meer M. M. Rahman, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting 26 Assistant Attorney General; 27 Nancy E. Friedman, Senior 28 Litigation Counsel; Sharon M. 29 Clay, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DISMISSED IN PART and DENIED IN PART.
9 Petitioner Meng Yuan Sun, a native and citizen of the
10 People’s Republic of China, seeks review of a BIA decision
11 affirming the denial of Sun’s application for asylum,
12 withholding of removal, and relief under the Convention
13 Against Torture (“CAT”). In re Meng Yuan Sun, No. A205 618
14 941 (B.I.A. Dec. 19, 2016), aff’g No. A205 618 941 (Immig.
15 Ct. N.Y. City Mar. 11, 2016). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 in this case.
18 Under the circumstances of this case, we have reviewed
19 the decisions of both the Immigration Judge (“IJ”) and the
20 BIA “for the sake of completeness,” Wangchuck v. Dep’t of
21 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), applying
22 well established standards of review, see 8 U.S.C. §
23 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
24 Cir. 2009).
2 1 I. Timeliness of the Asylum Application
2 The agency denied Sun’s October 2012 asylum application
3 as untimely, finding that it was filed more than a year
4 after his 2008 arrival in the United States, and not within
5 a “reasonable period” following Sun’s January 2012 “changed
6 circumstances.” See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. §
7 1208.4(4). In January 2012, Sun stopped working in his
8 field of study, causing his legal status to expire. See 8
9 C.F.R. § 214.2(f)(10). Separately, but about the same time,
10 Sun began attending church and converted to Christianity.
11 The agency concluded that Sun was unreasonable in delaying
12 to file his application 10 months after his changed
13 circumstances.
14 Our jurisdiction to review the agency’s determination
15 of untimeliness is limited to “constitutional claims or
16 questions of law." See 8 U.S.C. § 1252(a)(2)(D). Sun’s
17 petition raises neither.
18 Instead, Sun challenges the agency’s factual findings,
19 arguing that his legal status continued through July 2012,
20 and that he converted to Christianity only in August 2012,
21 making his asylum application in October timely. This
22 argument “merely quarrels over the correctness of the
3 1 [agency’s] factual findings or justification for the
2 discretionary choices,” which we lack jurisdiction to
3 review. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
4 315, 329 (2d Cir. 2006). Because Sun has identified no
5 constitutional or legal error, we dismiss the petition as
6 it relates to asylum application.
7 II. Merits
8 Reviewing the agency’s factual findings for “substantial
9 evidence” and its “conclusions of law” de novo, see Niang v.
10 Holder, 762 F.3d 251, 253 (2d Cir. 2014), we deny the
11 remainder of Sun’s petition, identifying no error in the
12 agency’s determination that Sun failed to demonstrate
13 eligibility for asylum, and, therefore, necessarily failed to
14 meet the higher burden for withholding of removal and CAT
15 relief. See Y.C. v. Holder, 741 F.3d 324, 335 (2d Cir. 2013).
16 Asylum eligibility can be established by a well-founded
17 fear of persecution, which is a “subjective fear that is
18 objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552
19 F.3d 277, 284 (2d Cir. 2009) (internal quotation marks
20 omitted); see 8 U.S.C. § 1101(a)(42); 8 C.F.R.
21 § 1208.13(b)(2); see also Y.C., 741 F.3d at 332 (“For an
22 asylum claim, the applicant must show a reasonable
4 1 possibility of future persecution.” (internal quotation
2 marks omitted)). An applicant can make that showing in two
3 ways: (1) by demonstrating that he “‘would be singled out
4 individually for persecution’ if returned,” or (2) by
5 proving the existence of a “‘pattern or practice in
6 [the] . . . country of nationality . . . of persecution of
7 a group of persons similarly situated to the applicant’ and
8 establishing his or her ‘own inclusion in, and
9 identification with, such group.’” Y.C., 741 F.3d at 332
10 (quoting 8 C.F.R. § 1208.13(b)(2)(iii)). “[I]n order to
11 establish eligibility for relief based exclusively on
12 activities undertaken after . . . arrival in the United
13 States, an alien must make some showing that authorities in
14 his country of nationality are (1) aware of his activities
15 or (2) likely to become aware of his activities.” Hongsheng
16 Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008).
17 Here, substantial evidence supports the agency’s
18 conclusion that Sun failed to show a reasonable possibility
19 that he would be singled out for persecution. See id.; Jian
20 Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In
21 the absence of solid support in the record,” a fear of
22 persecution is not well founded and “is speculative at
5 1 best.”). Sun’s only evidence that Chinese authorities were
2 aware of his religious activities was a letter from his
3 mother, an interested witness unavailable for cross
4 examination. The agency acted within its discretion in
5 declining to credit this evidence. See Y.C., 741 F.3d at 334
6 (deferring to agency’s determination that letter from
7 relative in China—stating that petitioner had been visited by
8 police who were aware of applicant’s pro-democracy activities
9 in the United States—was entitled to limited weight because
10 it was unsworn and submitted by an interested witness).
11 Moreover, while Sun provided certain evidence about his
12 proselytizing activities (which the agency, in any event, did
13 not credit) he does not challenge the IJ’s finding, supported
14 by country-conditions evidence, that Chinese authorities
15 focus their efforts on pastors or leaders of house churches,
16 not individual worshipers. See Xiao Ji Chen, 471 F.3d at 342
17 (weight accorded to an applicant’s evidence “lie[s] largely
18 within the discretion of the IJ” (internal quotation marks
19 omitted)).
20 Further, substantial evidence also supports the agency’s
21 determination that Sun failed to establish a pattern or
22 practice of persecuting underground Christians in China. See
6 1 Jian Xing Huang, 421 F.3d at 129. To establish such a pattern
2 or practice, an applicant must demonstrate that the harm to
3 that group is “systemic or pervasive.” In re A-M-, 23 I. &
4 N. Dec. 737, 741 (B.I.A. 2005); see Mufied v. Mukasey, 508
5 F.3d 88, 92-93 (2d Cir. 2007). The agency properly considered
6 the country conditions evidence, see Xiao Ji Chen, 471 F.3d
7 at 342, and reasonably concluded that there was not systemic
8 or pervasive persecution, observing that tens of millions of
9 Christians practice this faith in China without apparent
10 interference.
11 Accordingly, we identify no error in the agency’s
12 decision to deny Sun asylum, withholding of removal, or CAT
13 relief.
14 For the foregoing reasons, the petition for review is
15 DISMISSED IN PART and DENIED IN REMAINING PART. As we have
16 completed our review, any stay of removal that the Court
17 previously granted in this petition is VACATED, and any
18 pending motion for a stay of removal in this petition is
19 DISMISSED as moot. Any pending request for oral argument in
20 this petition is DENIED in accordance with Federal Rule of
7 1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT: 4 Catherine O’Hagan Wolfe 5 Clerk of Court