1 9

- 2484 Lu v. Garland BIA Hom , IJ A 087 859 905 

### 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**  **ELECTR ONIC 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 Mar**  **shall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,**  3 **on the 1**  **4 t**  **h da**  **y of O**  **c t**  **o b**  **e r**  **, two thousand**  **twenty**

**- one** 
**.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI ,**  7 **JOSÉ A. CABRANES ,**  8 **STEVEN J. MENASHI ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **WENXIN LU ,**  13 **Petitioner ,**  14 15
**v. 19** 

**- 2484**  16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL**  **,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Zhen Liang Li, Esq. , New York , 23 N Y

. 24 25 **FOR RESPONDENT:** Joseph H. Hunt , Assistant 26 Attorney General; Cindy S. 27 Ferrier , Assistant Director ; 28 Surell Brady , Trial Attorney, 292 Office of Immigration Litigation , 1 United States Depar tment of 2 Justice, Washington, D C. 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 petitio n for review 7

is DENIED. 8

Petitioner Wenxin Lu , a native an d citizen of the 9
People’s Republic of China , seeks review of a July 15 , 2019 , 10
decision of the BIA affirming a January 26 , 2018 , decision of 11
an Immigration Judge (“IJ”) denying asylum, withholding of 12

removal , and relief under the Convention Against Torture 13

(“CAT”). In re Wenxin Lu , No. A 087 859 905 (B.I.A. July 15 , 14

2019 ), aff’g No. A 087 859 905 (Immig. Ct. N.Y. City Jan. 26, 15

2018 ). We assume the parties’ familiarity with the 16
underlying facts and procedural h istory. 17

We have reviewed the IJ’s decision as modified by the 18
BIA, i.e., minus the timeliness and adverse credibility 19

determinations that the BIA did not reach. See Xue Hong Yang 20
v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). 21
The applicable standards of review are well established. See 22

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

27 (2d Cir. 2018). 243 The agency did not err in finding that Lu failed to 1
adequately corroborate his claim that police detained and 2

beat him in China on account of his religious practice. “The 3
testimony of the applicant may be sufficient to sustain the 4
applicant’s burden witho ut corroboration, but only if the 5
applicant satisfies the trier of fact that the applicant’s 6
testimony is credible, is persuasive, and refers to specific 7
facts sufficient to demonstrate that the applicant is a 8
refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see a lso id. 9

§ 1231(b)(3)(C); Wei Sun , 883 F.3d at 28. “In determining 10
whether the applicant has met [ his ] burden, the trier of fact 11
may weigh the credible testimony along with other evidence of 12

record. Where the trier of fact determines that the 13
applicant sh ould provide evidence that corroborates otherwise 14
credible testimony, such evidence must be provided unless the 15
applicant does not have the evidence and cannot reasonably 16

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

id. § 1231(b)(3)(C). 18

A s the agency found, Lu failed to corroborate his claim 19

of mistreatment with evidence from the doctor he visited after 20

his release from detention , and he did not corroborate his 21
testimony or his mother’s assertion that she borrowed money 224 from relatives to s ecure his release. Therefore, the only 1

evidence to corroborate Lu’s claim of past persecution were 2
letters from his mother and two fellow churchgoers , which the 3
agency reasonably declined to credit because they were 4

unsworn. See Y.C. v. Holder , 741 F.3d 324, 334 (2d Cir. 5
2013) (deferring to the agency’s decision to afford little 6
weight to an unsworn letter submitted from a relative). 7
Accordingly , the agency did not err in finding that Lu failed 8

to corroborat e his past persecution

. See 8 U.S.C. 9

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

F.3d at 28. 11
Absent past persecution, a n applicant may establish 12
eligibility for asylum by demonstrating a well

- founded fear 13
of future persecution. 8 C.F.R. § 1208.13(b)(2); Hongsheng 14
Leng v. Mukas ey , 528 F.3d 135, 142 (2d Cir. 2008). To do so, 15

the applicant must show either “ a reasonable possibility he 16

. . . would be singled out individually for persecution ” or 17
that the country of removal has a “ pattern or practice ” of 18
persecuting similarly situat ed individuals. 8 C.F.R. 19

§ 1208.13(b)(2)(iii); Hongsheng Leng , 528 F.3d at 142. Where 20
an applicant’s claim is based on activities in the United 21
States, the applicant “must make some showing that 225 authorities in his country of nationality are either aware of 1
his activities or likely to become aware of his activities.” 2
Hongsheng Leng , 528 F.3d at 143. 3

Given Lu’s failure to establish that Chinese officials 4
targeted him on account of his past religious practice, the 5
agency reasonably concluded that Lu failed to demonstrate 6

that Chinese officials are aware of his religious practice

. 7

See id . The agency also did not err in finding that he failed 8
to establish a reasonable possibility that they would 9
discover his practice of Christianity given his testimony 10
regarding his limited role in the church and the country 11

conditions evidence that there are tens of millions of 12

Christians in China. 13

T he agency also did not err in determining that Lu failed 14
to establish a pattern or practice of persecution of similarly 15

situated individuals because, despite evidence that Chinese 16
officials restrict religious activities and harass and 17
persecute practitione rs in some areas of China , in other 18
areas, Christians practice their religion without government 19

interference

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

also Santoso v. Holder , 580 F.3d 110, 112 & n.1 (2d Cir. 2009) 21
(denying petition where agency consi dered background 226 materials and rejected pattern or practice claim because 1
evidence showed only localized violence ); In re A

- M

- , 23 I. 2
& N. Dec. 737, 741 (B.I.A. 2005) (recognizing that a pattern 3
or practice of persecution is the “systemic or pervasive” 4

per secution of a group). 5
Accordingly, the agency did not err in concluding that 6
Lu failed to establish past persecution or a well

- founded 7
fear of persecution. See 8 U.S.C. §§ 1158(b)(1)(B)(i), (ii), 8

1231(b)(3)(C); 8 C.F.R. §§ 1208.13(b), 1208.16(b). Those 9
findings were dispositive of asylum, withholding of removal, 10

and CAT relief because all three claims were based on the 11
same factual predicate. See 8 C.F.R. §§ 1208.13(b), 12

1208.16(b); Paul v. Gonzales , 444 F.3d 148, 156

– 57 (2d Cir. 13

2006). 14
For the foregoing reasons, the petition for review is 15

DENIED . All pending motions and applications are DENIED and 16

stays VACATED. 17

FOR THE COURT: 18 Catherine O ’ Hagan Wolfe , 19 Clerk of Court 20