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CHEN v. GARLAND (2021)

United States Court of Appeals, Second Circuit.2021-04-19No. 19-10 NAC

Summary

Holding. The petition for review is denied because, although the agency erred in its time-bar analysis by overlooking Chen's changed-circumstances argument, the agency's alternative and dispositive conclusion that Chen failed to establish a well-founded fear of persecution was legally sound.

Xiaocui Chen, a Chinese national, petitioned for review of decisions denying her asylum application, withholding of removal, and relief under the Convention Against Torture. The Immigration Judge and Board of Immigration Appeals had rejected her claim as untimely filed and alternatively denied relief on the merits. The court found that the agency committed legal error by failing to address Chen's argument that her conversion to Christianity in the United States constituted a changed circumstance excusing the late filing.

However, the court declined to remand the case because it concluded the agency's alternative ruling—that Chen failed to establish a well-founded fear of persecution—was sound and independently sufficient to deny all relief. Chen's evidence that Chinese authorities were aware of her Christian religious practice consisted of vague testimony and uncross-examinable letters from acquaintances, which the agency reasonably accorded minimal weight. Additionally, the country conditions evidence showing millions of Christians practicing in unregistered churches did not demonstrate a systemic pattern or practice of persecution targeting Christians. Since Chen could not show a well-founded fear of persecution required for asylum, she necessarily failed to meet the stricter standards for withholding of removal and Convention Against Torture relief.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether changed circumstances (religious conversion in the United States) excuse untimely asylum filing
  • Whether applicant established well-founded fear of persecution based on Christian religious practice
  • Sufficiency of evidence that foreign authorities are aware of applicant's activities undertaken in the United States
  • Whether country conditions evidence demonstrates pattern or practice of persecution of Christians in China

Procedural posture

Chen sought judicial review of the Board of Immigration Appeals' affirmance of an Immigration Judge's decision denying her asylum, withholding of removal, and Convention Against Torture claims.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

SUMMARY ORDER

Petitioner Xiaocui Chen, a native and citizen of China, seeks review of a December 19, 2018, decision of the BIA affirming a November 8, 2017, decision of an Immigration Judge (“IJ”) denying Chens application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xiaocui Chen, No. A XXX XX0 445 (B.I.A. Dec. 19, 2018), affg No. A XXX XX0 445 (Immig. Ct. N.Y. City Nov. 8, 2017). We assume the parties’ familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed the IJs decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013).

The agency denied Chens asylum claim as time barred and alternatively denied all relief on the merits. We find legal error in the agencys time bar ruling as neither the IJ nor the BIA addressed Chens argument that her conversion to Christianity while in the United States was a change in circumstances that excused her untimely filing. See 8 U.S.C. § 1158(a)(2)(B), (D); Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009) (holding that an error of law may arise where facts have “been totally overlooked”). However, we decline to remand because, as discussed below, we find no error in the agencys alternative and dispositive conclusion that Chen failed to establish a well-founded fear of persecution. See Gurung v. Barr, 929 F.3d 56, 62 (2d Cir. 2019) (noting that remand is not necessary “when the IJ articulates an alternative and sufficient basis for her determination”).

Absent past persecution, an asylum applicant may establish eligibility for relief by demonstrating a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(2); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). To do so, an applicant must show either a reasonable possibility that she would be singled out for persecution or that the country of removal has a “pattern or practice” of persecuting similarly situated individuals. 8 C.F.R. § 1208.13(b)(2)(iii); see In re A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005) (defining pattern or practice as “systemic or pervasive” persecution). “[T]o establish eligibility for relief based exclusively on activities undertaken after h[er] arrival in the United States, an alien must make some showing that authorities in h[er] country of nationality are (1) aware of h[er] activities or (2) likely to become aware of h[er] activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008).

The agency reasonably found that Chen failed to satisfy her burden of proof because her evidence that Chinese police were aware of her religious practice in the United States consisted of vague testimony and letters from friends and family members that were entitled to minimal weight, and her country conditions evidence did not reflect a pattern or practice of persecution of Christians in China. Chen alleged that Chinese authorities were aware of her practice of Christianity in the United States because she had discussed Christianity on the telephone with people in China. But her information lacked detail about who she spoke to or when, and her supporting letters were authored by individuals not available for cross-examination. See Jian Xing Huang v. U.S. INS, 421 F.3d 125, 128 (2d Cir. 2005) (requiring “credible, specific, and detailed evidence”); Y.C., 741 F.3d at 332, 334 (holding that “[w]e generally defer to the agencys evaluation of the weight to be afforded an applicants documentary evidence” and upholding BIAs decision not to credit letter from applicants spouse). Moreover, the country conditions evidence reported tens of millions of Christians practicing in unregistered churches in China. The agency did not err in determining that this evidence failed to demonstrate a pattern or practice of persecution of Christians in China based on the record in this case. See 8 C.F.R. § 1208.13(b)(2)(iii); Santoso v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009); Mufied v. Mukasey, 508 F.3d 88, 92–93 (2d Cir. 2007). Because the agency reasonably found that Chen failed to demonstrate the well-founded fear of persecution needed for asylum, she “necessarily” failed to meet the higher standards for withholding of removal and CAT relief. Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.