19-896

Liu v. Garland

BIA

Poczter, IJ

A205 610 836

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 United 

3 States Courthouse, 40 Foley Square, in the City of New York, 

on the 30th 4 day of November, two thousand twenty-one.

5

6 PRESENT:

7 JON O. NEWMAN,

8 RICHARD C. WESLEY,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 JINBIN LIU,

14 Petitioner,

15

16 v. 19-896

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Adedayo O. Idowu, Esq., New York,

24 NY.

25

26 FOR RESPONDENT: Joseph H. Hunt, Assistant 

27 Attorney General; Mary Jane 

28 Candaux, Assistant Director; 

29 Stephen Finn, Trial Attorney, 

30 Office of Immigration Litigation,

31 United States Department of 

32 Justice, Washington, DC.
2

1 UPON DUE CONSIDERATION of this petition for review of a 

2 Board of Immigration Appeals (“BIA”) decision, it is hereby 

3 ORDERED, ADJUDGED, AND DECREED that the petition for review 

4 is DENIED.

5 Petitioner Jinbin Liu, a native and citizen of the 

6 People’s Republic of China, seeks review of a March 13, 2019, 

7 decision of the BIA affirming a July 10, 2017, decision of an 

8 Immigration Judge (“IJ”) denying him asylum, withholding of 

9 removal, and relief under the Convention Against Torture 

10 (“CAT”). In re Jinbin Liu, No. A205 610 836 (B.I.A. Mar. 13, 

11 2019), aff’g No. A205 610 836 (Immig. Ct. N.Y. City July 10, 

12 2017). We assume the parties’ familiarity with the 

13 underlying facts and procedural history.

14 We have reviewed both the IJ’s and the BIA’s decisions 

15 “for the sake of completeness.” Wangchuck v. Dep’t of 

16 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The 

17 applicable standards of review are well established. Y.C. 

18 v. Holder, 741 F.3d 324, 332 (2d Cir. 2013). The agency did 

19 not err in finding that, although credible, Liu failed to 

20 persuasively establish a well-founded fear of persecution on 

21 account of his pro-democracy activities in the United States. 

22 See 8 U.S.C. § 1158(b)(1)(B)(ii) (“The testimony of the 
3

1 applicant may be sufficient to sustain the applicant’s burden 

2 without corroboration, but only if the applicant satisfies 

3 the trier of fact that the applicant’s testimony is credible, 

4 is persuasive, and refers to specific facts sufficient to 

5 demonstrate that the applicant is a refugee.”). 

6 Absent past persecution, an applicant may establish 

7 eligibility for asylum by demonstrating a well-founded fear 

8 of future persecution, 8 C.F.R. § 1208.13(b)(2), “which 

9 requires that the alien present credible testimony that he 

10 subjectively fears persecution and establish that his fear is 

11 objectively reasonable,” Ramsameachire v. Ashcroft, 357 F.3d 

12 169, 178 (2d Cir. 2004). To demonstrate an objectively 

13 reasonable fear, an applicant must show either that he would

14 be “singled out” for persecution or that the country of 

15 removal has a “pattern or practice” of persecuting “similarly 

16 situated” individuals. 8 C.F.R. § 1208.13(b)(2)(iii). 

17 “[I]n order to establish eligibility for relief based 

18 exclusively on activities undertaken after his arrival in the 

19 United States, an alien must make some showing that 

20 authorities in his country of nationality are (1) aware of 

21 his activities or (2) likely to become aware of his 

22 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 138 
4

1 (2d Cir. 2008). 

2 The agency reasonably declined to credit an unsworn 

3 letter from Liu’s wife asserting that Chinese officials know 

4 about Liu’s pro-democracy activities in the United States 

5 because the letter was written by an interested witness who 

6 was not subject to cross-examination. See Y.C., 741 F.3d at 

7 334. And the agency was not compelled to conclude that Liu’s 

8 testimony in this regard was particularly persuasive. See

9 8 U.S.C. § 1158(b)(1)(B)(ii); Hongsheng Leng, 528 F.3d at 

10 143. Further, we have found “most unlikely” the “suggestion 

11 that the Chinese government is aware of every anti-Communist 

12 or pro-democracy piece of commentary published online,” and 

13 have deemed speculative the assertion that the Chinese 

14 government will likely discover political activities in the 

15 United States and articles published online years before a 

16 noncitizen is removed. Y.C., 741 F.3d at 334 (citing Jian 

17 Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In 

18 the absence of solid support in the record . . . [an 

19 applicant’s] fear is speculative at best.”)). Accordingly, 

20 the agency reasonably concluded that Liu failed to establish 

21 that Chinese officials are aware of or likely to become aware 

22 of Liu’s pro-democracy activities. See id.; Hongsheng Leng, 
5

1 528 F.3d at 138. 

2 Alternatively, the agency reasonably found that Liu 

3 failed to establish that similarly situated individuals face 

4 persecution because “[t]he record is silent as to whether the 

5 Chinese government views domestic pro-democracy advocates 

6 differently from Chinese nationals who espouse pro-democracy 

7 ideals abroad.” Y.C., 741 F.3d at 335.

8 Because Liu failed to persuasively demonstrate that 

9 authorities are aware or are likely to become aware of his 

10 political activities in the United States and failed to show 

11 an objectively reasonable fear of persecution on account of 

12 those activities, the agency reasonably concluded that he 

13 failed to establish a well-founded fear of persecution. See 

14 Y.C., 741 F.3d at 334–35; Hongsheng Leng, 528 F.3d at 142. 

15 That finding was dispositive of asylum, withholding of 

16 removal, and CAT relief because all three claims were based 

17 on the same factual predicate.* See Paul v. Gonzales, 444 

18 F.3d 148, 156-57 (2d Cir. 2006).

* The BIA and Government incorrectly conclude that Liu waived 

his CAT claim before the BIA. The IJ denied CAT relief 

because Liu failed to satisfy the lower burden of proving the

well-founded fear required for asylum and thus Liu’s 

challenge to that finding on appeal to the BIA necessarily 

included a challenge to the denial of CAT relief. 
6

1 For the foregoing reasons, the petition for review is 

2 DENIED. All pending motions and applications are DENIED and 

3 stays VACATED.

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe,

6 Clerk of Court