17-2136 Chenwu Yang v. Barr BIA Vomacka, IJ A205 448 034 

### 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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 31 st**  **day of May, two thousand nineteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **ROSEMARY S. POOLER,** 8 **GERARD E. LYNCH,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **CHENWU YANG,** 13 Petitioner **,** 14 15 **v. 17-2136** 16 **NAC** 17 **WILLIAM P. BARR,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Zhen Liang Li, New York, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Linda S. 26 Wernery, Assistant Director; Susan 27 Bennett Green, Senior Litigation 28 Counsel, Office of Immigration 292 Litigation, United States 1 Department of Justice, Washington, 2 DC. 3 UPON DUE CONSIDERATION of this petition for review of a 4 Board of Immigration Appeals (“BIA”) decision, it is hereby 5 ORDERED, ADJUDGED, AND DECREED that the petition for review 6 is DENIED. 7 Petitioner Chenwu Yang, a native and citizen of the 8 People’s Republic of China, seeks review of a June 16, 2017, 9 decision of the BIA affirming an October 29, 2015, decision 10 of an Immigration Judge (“IJ”) denying Yang’s application for 11 asylum, withholding of removal, and relief under the 12 Convention Against Torture (“CAT”). In re Chenwu Yang, No. 13

A 205 448 034 (B.I.A. June 16, 2017), aff’g No. A 205 448 034 14 (Immig. Ct. N.Y.C. Oct. 29, 2015). 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 the IJ’s decision as modified by the BIA. See Xue Hong Yang 19 v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). 20 The applicable standards of review are well established. See 21 8 U.S.C. § 1252(b)(4)(B); Chuilu Liu v. Holder , 575 F.3d 193, 22 196 (2d Cir. 2009); Yanqin Weng v. Holder , 562 F.3d 510, 513 233 (2d Cir. 2009). 1 Absent past persecution, an alien may establish 2 eligibility for asylum by de monstrating a well-founded fear 3 of future persecution, 8 C.F.R. § 1208.13(b)(2), which 4 requires an applicant to “present credible testimony that he 5 subjectively fears persecution and [to] establish that his 6 fear is objectively reasonable,” Ramsameachire v. Ashcroft , 7 357 F.3d 169, 178 (2d Cir. 2004). To demonstrate a well8 founded fear, an applicant must show either “a reasonable 9 possibility he . . . would be singled out individually for 10 persecution” or that the country of removal has a “pattern or 11 practice” of persecuting individuals similarly situated to 12 him. 8 C.F.R. § 1208.13(b)(2)(iii). Where a claim is “based 13 exclusively on activities undertaken after his arrival in the 14 United States, an alien must make some showing that 15 authorities in his country of nationality are (1) aware of 16 his activities or (2) likely to become aware of his 17 activities.” Hongsheng Leng v. Mukasey , 528 F.3d 135, 138 18 (2d Cir. 2008). 19 “The testimony of the applicant may be sufficient to 20 sustain the applicant’s burden without corroboration, but 21 only if the applicant satisfies the trier of fact that the 224 applicant’s testimony is credible, is persuasive, and refers 1 to specific facts sufficient to demonstrate that the 2 applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see 3 also Chuilu Liu , 575 F.3d at 196-97. “In determining whether 4 the applicant has met [his] burden, the trier of fact may 5 weigh the credible testimony along with other evidence of 6 record. Where the trier of fact determines that the 7 applicant should provide evidence that corroborates otherwise 8 credible testimony, such evidence must be provided unless the 9 applicant does not have the evidence and cannot reasonably 10 obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). 11 Yang does not challenge the agency’s finding that he 12 failed to present reasonably available corroborating 13 evidence. Accordingly, Yang has waived any challenge to that 14 dispositive finding. See Norton v. Sam’s Club , 145 F.3d 114, 15 117 (2d Cir. 1998) (“Issues not sufficiently argued in the 16 briefs are considered waived and normally will not be 17 addressed on appeal.”). In any event, as discussed below, 18 we find no error in the agency’s conclusion. 19 The IJ reasonably required evidence to corroborate Yang’s 20 testimony because Yang was not responsive to all the questions 21 posed to him—even questions his own attorney posed—and gave 225 only vague explanations about why he became a Christian. S ee 1 8 U.S.C. § 1158(b)(1)(B)(ii); see also Chuilu Liu , 575 F.3d 2 at 196-97. The agency identified the missing evidence— 3 documentation or witness testimony regarding Yang’s church 4 attendance, a letter from his parents, and country conditions 5 evidence—and Yang did not establish that the evidence was 6 unavailable. See Chuilu Liu , 575 F.3d at 198-99; see also 8 7 U.S.C. § 1252(b)(4) (“No court shall reverse a determination 8 made by a trier of fact with respect to the availability of 9 corroborating evidence . . . unless . . . a reasonable trier 10 of fact is compelled to conclude that such corroborating 11 evidence is unavailable.”). Moreover, although Yang and his 12 attorney asserted that they had filed a letter from Yang’s 13 parents and a baptism certificate, the documents were 14 untimely filed, never received by the IJ, and not presented 15 to the BIA. 16 Nor was the IJ required to continue the hearing because, 17 given the length of time Yang had to gather evidence, he did 18 not provide a reasonable excuse for the untimely filing. See 19 Matter of L-A-C- , 26 I. & N. Dec. 516, 524 (BIA 2015) (“[I]t 20 is within the discretion of the [IJ] to decide whether there 21 is good cause to continue the proceedings in a particular 226 case for additional corroboration or for any other reason.”). 1 As to the evidence of corroboration that Yang did submit, 2 the IJ did not err in assigning it little weight. The only 3 evidence Yang presented to corroborate his asserted church 4 attendance was a photograph; however, there was no testimony 5 or other evidentiary foundation for the photograph, and it 6 did not show a church service. See Xiao Ji Chen v. U.S. 7 Dep’t of Justice , 471 F.3d 315, 341-42 (2d Cir. 2006) (holding 8 that determination of the weight of evidence is largely matter 9 of agency discretion). 10 More significantly, the agency did not err in determining 11 that the country conditions evidence failed to demonstrate a 12 pattern or practice of persecution of similarly situated 13 individuals. As the IJ noted, the State Department report 14 reflected varied enforcement of restrictions on Christians 15 and identified no persecution of Christians in Yang’s home 16 province of Fujian. See Jian Hui Shao v. Mukasey , 546 F.3d 17 138, 149-50, 165-66 (2d Cir. 2008) (upholding BIA’s 18 conclusion that when fear of persecution is based on 19 enforcement of a policy that varies by region, it is the 20 applicant’s burden to show enforcement of the policy in his 21 home region). Accordingly, the agency did not err in 227 determining that Yang failed to demonstrate a pattern and 1 practice of persecution, particularly in light of an estimate 2 cited in the State Department report on which the IJ relied 3 that there are 45 million Protestant Christians in China not 4 affiliated with the government-sponsored church. See 5 8 C.F.R. § 1208.13(b)(2)(iii); see also Santoso v. Holder , 6 580 F.3d 110, 112 & n.1 (2d Cir. 2009) (denying petition where 7 agency considered background materials and rejected pattern 8 or practice claim); In re A-M- , 23 I. & N. Dec. 737, 741 (BIA 9 2005) (recognizing that a pattern or practice of persecution 10 is the “systemic or pervasive” persecution of a group). 11 The agency also did not err in finding that Yang failed 12 to establish a reasonable possibility of being singled out 13 for persecution. Yang did not assert that Chinese officials 14 are aware of his religious practice. Additionally, in light 15 of the tens of millions of unregistered Christian 16 practitioners in China and the lack of evidence regarding the 17 persecution of Christians in Fujian province, Yang did not 18 demonstrate that Chinese officials are likely to discover his 19 religious activities as required for him to establish an 20 objectively reasonable well-founded fear. See Hongsheng 21 Leng , 528 F.3d at 143. 228 Therefore, because the agency reaso nably found that Yang 1 failed to demonstrate a well-founded fear of persecution, it 2 did not err in denying asylum, withholding of removal, and 3 CAT relief, since all three claims were based on the same 4 factual predicate. See Lecaj v. Holder , 616 F.3d 111, 119-20 5 (2d Cir. 2010). Because this conclusion is dispositive of 6 Yang’s petition, we do not address whether the adverse 7 credibility determination provides an independent basis for 8 the agency’s decision. See INS v. Bagamasbad , 429 U.S. 24, 9 25 (1976) (“As a general rule courts and agencies are not 10 required to make findings on issues the decision of which is 11 unnecessary to the results they reach.”). 12 We have considered the remainder of Yang’s arguments and 13 find them to be without merit. For the foregoing reasons, 14 the petition for review is DENIED. 15

FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17