Xue v. Whitaker

Opinion

17-1034 Xue v. Whitaker BIA

Vomacka, IJ

A087 604 890

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 19th day of December, two thousand 5 eighteen. 6 7 PRESENT: 8 PETER W. HALL, 9 DEBRA ANN LIVINGSTON, 10 GERARD E. LYNCH, 11 Circuit Judges. 12 _____________________________________ 13 14 DONGSHENG XUE, 15 Petitioner, 16 17 v. 17-1034 18 NAC 19 MATTHEW G. WHITAKER, 20 ACTING UNITED STATES ATTORNEY 21 GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Dongsheng Xue, pro se, Las Vegas, 26 NV. 27 28 FOR RESPONDENT: Chad A. Readler, Acting Assistant 29 Attorney General; Linda S. 30 Wernery, Assistant Director; 31 Brendan Moore, Trial Attorney, 32 Office of Immigration Litigation,

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1 United States Department of 2 Justice, Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a

5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Dongsheng Xue, a native and citizen of the 9 People’s Republic of China, seeks review of a March 14, 2017, 10 decision of the BIA affirming a July 20, 2016, decision of an 11 Immigration Judge (“IJ”) denying Xue’s application for asylum 12 and withholding of removal. In re Dongsheng Xue, No. A 087 13 604 890 (B.I.A. Mar. 14, 2017), aff’g No. A 087 604 890 14 (Immig. Ct. N.Y. City July 20, 2016). We assume the parties’ 15 familiarity with the underlying facts and procedural history 16 in this case. 17 Under the circumstances of this case, we have reviewed 18 both the BIA’s and IJ’s decisions “for the sake of 19 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 20 524, 528 (2d Cir. 2006). The standards of review are well 21 established. See 8 U.S.C. § 1252(b)(4); Kyaw Zwar Tun v. 22 U.S. INS, 445 F.3d 554, 562–63 (2d Cir. 2006). 23 In the absence of past persecution, Xue had the burden 24 of proving a well-founded fear of persecution on account of

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1 his practice of Falun Gong or his violation of the family 2 planning policy. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i). 3 To do this, he was required to show that he subjectively fears 4 persecution and that his fear is objectively reasonable. 5 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). 6 The objective component can be satisfied either by 7 establishing “a reasonable possibility that he . . . would be 8 singled out individually for persecution” or “a pattern or 9 practice . . . of persecution of a group of persons similarly 10 situated to [him].” 8 C.F.R. § 1208.13(b)(2)(iii); see also 11 Y.C. v. Holder, 741 F.3d 325, 332 (2d Cir. 2013). We find 12 no error in the agency’s conclusion that Xue failed to 13 establish an objectively reasonable fear of persecution. 14 I. Sterilization 15 Xue alleged that Chinese family planning officials 16 sought to sterilize him after he and his wife had a second 17 child in 2007, but he was able to delay the operation until 18 he escaped China in 2009. The agency reasonably concluded 19 that Xue’s fear of sterilization was speculative because 20 China had since changed its population control policy to 21 allow families to have two children, Xue was not sterilized 22 between 2007 and his 2009 departure from China, and Xue did

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1 not present any evidence that the authorities still sought 2 to sterilize him or his wife. Given the lack of evidence 3 that Xue will be targeted for sterilization or that others 4 in his position have been sterilized, his fear of 5 sterilization is speculative. Jian Xing Huang v. U.S. INS, 6 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid 7 support in the record,” an asylum applicant’s fear of 8 persecution is “speculative at best”). The BIA did not err 9 in declining to consider Xue’s claim that he will be 10 sterilized or otherwise punished for leaving China without 11 permission because he did not raise it before the IJ. 12 “[T]he BIA may refuse to consider an issue that could have 13 been, but was not, raised before an IJ,” and in that 14 situation, our “review is limited to whether the BIA erred 15 in deeming the argument waived.” Prabhudial v. Holder, 780 16 F.3d 553, 555–56 (2d Cir. 2015). The BIA did not err 17 because Xue did not provide any evidentiary support for 18 this claim despite having an opportunity to do so on 19 remand. Although the July 2015 letter from Xue’s wife 20 states that Chinese officials know Xue escaped to the 21 United States, she alleged only that he would be arrested 22 for practicing Falun Gong, not that he would be punished

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1 for leaving China. 2 II. Falun Gong 3 An IJ may require an asylum applicant to provide 4 evidence that corroborates otherwise credible testimony in 5 order to meet the applicant’s burden of proof for asylum. 6 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu v. Holder, 575 7 F.3d 193, 198 n. 5 (2d Cir. 2009). When an IJ determines 8 that corroborating evidence is necessary, the applicant 9 must provide the evidence “unless the applicant does not 10 have the evidence and cannot reasonably obtain the 11 evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). We may reverse 12 the agency’s corroboration decision only if “a reasonable 13 trier of fact is compelled to conclude that such 14 corroborating evidence is unavailable.” 8 U.S.C. § 15 1252(b)(4); Yan Juan Chen v. Holder, 658 F.3d 246, 253 (2d 16 Cir. 2011). 17 Given the amount of time that passed between the 2008 18 events and the 2015 remand, Xue’s continuing fear of arrest 19 and mistreatment turned on whether he continued to practice 20 Falun Gong. Accordingly, it was reasonable for the IJ to 21 require that Xue corroborate his practice of Falun Gong in 22 the United States, either in the form of witness testimony or

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1 sworn affidavits. 8 U.S.C. § 1158(b)(1)(B)(ii). Although 2 Xue argues that it was difficult to obtain evidence from 3 China, he does not explain his inability to obtain statements 4 or testimony from witnesses who practiced Falun Gong with him 5 in the United States. See Chuilu Liu, 575 F.3d at 198-99 6 (placing burden on applicant to explain why the requested 7 evidence was not reasonably available). 8 The agency did not abuse its discretion in declining to 9 credit the evidence Xue did produce. We generally defer to 10 the agency’s weighing of the documentary evidence. Y.C., 741 11 F.3d at 334. Aside from the late-filed evidence that was 12 excluded,1 Xue submitted two 2012 letters from friends in the 13 United States, a 2015 letter from his wife in China, a 2015 14 article about a Falun Gong-related demonstration, and some 15 photographs of himself in Falun Gong positions. The IJ was 16 not required to credit the letter from Xue’s wife because it 17 was authored by an interested witness who was not available

1 The IJ did not abuse his discretion in excluding the late-filed March 2016 photographs and letters because Xue’s explanation that one individual was traveling did not explain why he waited another six months to obtain a letter or file the other letter and photographs, particularly given the IJ’s explicit warning that late-filed evidence would be excluded. 8 C.F.R. § 1003.31(c) (IJ has authority to set filing deadlines and exclude late evidence);

Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008) (reviewing exclusion of evidence for abuse of discretion).

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1 for cross examination. See Y.C., 741 F.3d at 334 (upholding 2 agency’s decision giving little weight to letter from spouse 3 in China). One 2012 letter did not mention Xue’s practice 4 of Falun Gong; although the other stated that the author had 5 seen Xue practice Falun Gong, it provided no details or 6 foundation for that statement; and the photographs lacked any 7 foundation. Id. at 332 (“We generally defer to the agency’s 8 evaluation of the weight to be afforded an applicant’s 9 documentary evidence.”). And the article about an October 10 2015 Falun Gong demonstration in Los Angeles did not link Xue 11 to the demonstration. Id. 12 Xue’s brief highlights recent country conditions reports 13 that discuss the arrests and mistreatment of Falun Gong 14 practitioners in China. But this focus misses the mark: the 15 agency did not make any findings regarding the current 16 conditions for Falun Gong practitioners because it held that 17 Xue failed to corroborate his continued practice of Falun 18 Gong. 19 In sum, we find no error in the agency’s conclusion that 20 Xue’s fear of sterilization was speculative based on the 21 current country conditions and his personal circumstances, 22 and he did not adequately corroborate his continuing practice

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1 of Falun Gong. See 8 U.S.C. § 1252(b)(4)(B); Jian Xing Huang, 2 421 F.3d at 129. This conclusion is dispositive of asylum 3 and withholding of removal. Ramsameachire, 357 F.3d at 183. 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 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court