19-2484

Lu v. Garland

BIA

Hom, IJ

A087 859 905

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 14th 4 day of October, two thousand twenty-one.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 JOSÉ A. CABRANES,

9 STEVEN J. MENASHI,

10 Circuit Judges.

11 _____________________________________

12

13 WENXIN LU,

14 Petitioner,

15

16 v. 19-2484

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Zhen Liang Li, Esq., New York, 

24 NY.

25 

26 FOR RESPONDENT: Joseph H. Hunt, Assistant

27 Attorney General; Cindy S. 

28 Ferrier, Assistant Director; 

29 Surell Brady, Trial Attorney, 
2

1 Office of Immigration Litigation,

2 United States Department of 

3 Justice, 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 DENIED.

9 Petitioner Wenxin Lu, a native and citizen of the 

10 People’s Republic of China, seeks review of a July 15, 2019, 

11 decision of the BIA affirming a January 26, 2018, decision of 

12 an Immigration Judge (“IJ”) denying asylum, withholding of 

13 removal, and relief under the Convention Against Torture 

14 (“CAT”). In re Wenxin Lu, No. A087 859 905 (B.I.A. July 15, 

15 2019), aff’g No. A087 859 905 (Immig. Ct. N.Y. City Jan. 26, 

16 2018). We assume the parties’ familiarity with the 

17 underlying facts and procedural history.

18 We have reviewed the IJ’s decision as modified by the 

19 BIA, i.e., minus the timeliness and adverse credibility 

20 determinations that the BIA did not reach. See Xue Hong Yang 

21 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 

22 The applicable standards of review are well established. See

23 8 U.S.C. § 1252(b)(4)(B); Wei Sun v. Sessions, 883 F.3d 23, 

24 27 (2d Cir. 2018).
3

1 The agency did not err in finding that Lu failed to 

2 adequately corroborate his claim that police detained and 

3 beat him in China on account of his religious practice. “The 

4 testimony of the applicant may be sufficient to sustain the 

5 applicant’s burden without corroboration, but only if the 

6 applicant satisfies the trier of fact that the applicant’s 

7 testimony is credible, is persuasive, and refers to specific 

8 facts sufficient to demonstrate that the applicant is a 

9 refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also id.

10 § 1231(b)(3)(C); Wei Sun, 883 F.3d at 28. “In determining 

11 whether the applicant has met [his] burden, the trier of fact 

12 may weigh the credible testimony along with other evidence of 

13 record. Where the trier of fact determines that the 

14 applicant should provide evidence that corroborates otherwise 

15 credible testimony, such evidence must be provided unless the 

16 applicant does not have the evidence and cannot reasonably 

17 obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also 

18 id. § 1231(b)(3)(C).

19 As the agency found, Lu failed to corroborate his claim 

20 of mistreatment with evidence from the doctor he visited after 

21 his release from detention, and he did not corroborate his 

22 testimony or his mother’s assertion that she borrowed money 
4

1 from relatives to secure his release. Therefore, the only 

2 evidence to corroborate Lu’s claim of past persecution were 

3 letters from his mother and two fellow churchgoers, which the 

4 agency reasonably declined to credit because they were 

5 unsworn. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 

6 2013) (deferring to the agency’s decision to afford little 

7 weight to an unsworn letter submitted from a relative). 

8 Accordingly, the agency did not err in finding that Lu failed 

9 to corroborate his past persecution. See 8 U.S.C. 

10 §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C); see also Wei Sun, 883 

11 F.3d at 28. 

12 Absent past persecution, an applicant may establish 

13 eligibility for asylum by demonstrating a well-founded fear 

14 of future persecution. 8 C.F.R. § 1208.13(b)(2); Hongsheng 

15 Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir. 2008). To do so, 

16 the applicant must show either “a reasonable possibility he 

17 . . . would be singled out individually for persecution” or 

18 that the country of removal has a “pattern or practice” of 

19 persecuting similarly situated individuals. 8 C.F.R. 

20 § 1208.13(b)(2)(iii); Hongsheng Leng, 528 F.3d at 142. Where 

21 an applicant’s claim is based on activities in the United 

22 States, the applicant “must make some showing that 
5

1 authorities in his country of nationality are either aware of 

2 his activities or likely to become aware of his activities.” 

3 Hongsheng Leng, 528 F.3d at 143.

4 Given Lu’s failure to establish that Chinese officials 

5 targeted him on account of his past religious practice, the 

6 agency reasonably concluded that Lu failed to demonstrate 

7 that Chinese officials are aware of his religious practice. 

8 See id. The agency also did not err in finding that he failed 

9 to establish a reasonable possibility that they would 

10 discover his practice of Christianity given his testimony 

11 regarding his limited role in the church and the country 

12 conditions evidence that there are tens of millions of 

13 Christians in China. 

14 The agency also did not err in determining that Lu failed 

15 to establish a pattern or practice of persecution of similarly 

16 situated individuals because, despite evidence that Chinese 

17 officials restrict religious activities and harass and 

18 persecute practitioners in some areas of China, in other 

19 areas, Christians practice their religion without government 

20 interference. See 8 C.F.R. § 1208.13(b)(2)(ii), (iii); see 

21 also Santoso v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009) 

22 (denying petition where agency considered background 
6

1 materials and rejected pattern or practice claim because 

2 evidence showed only localized violence); In re A-M-, 23 I. 

3 & N. Dec. 737, 741 (B.I.A. 2005) (recognizing that a pattern 

4 or practice of persecution is the “systemic or pervasive” 

5 persecution of a group). 

6 Accordingly, the agency did not err in concluding that 

7 Lu failed to establish past persecution or a well-founded 

8 fear of persecution. See 8 U.S.C. §§ 1158(b)(1)(B)(i), (ii), 

9 1231(b)(3)(C); 8 C.F.R. §§ 1208.13(b), 1208.16(b). Those

10 findings were dispositive of asylum, withholding of removal, 

11 and CAT relief because all three claims were based on the 

12 same factual predicate. See 8 C.F.R. §§ 1208.13(b), 

13 1208.16(b); Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 

14 2006). 

15 For the foregoing reasons, the petition for review is 

16 DENIED. All pending motions and applications are DENIED and 

17 stays VACATED.

18 FOR THE COURT: 

19 Catherine O’Hagan Wolfe,

20 Clerk of Court