13-2892 Wen v. Holder BIA Poczter, IJ A205 032 463 

### 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 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 United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 15 th** **day of July, two thousand fourteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **BARRINGTON D. PARKER,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **JIUCHENG WEN,** 13 Petitioner**,** 14 15 **v. 13-2892** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Zhong Yue Zhang, New York, New York.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney**  25 **General; Cindy S. Ferrier, Assistant** 26 **Director; Michele Y.F. Sarko, Trial** 27 **Attorney, Civil Division, Office of** 28 **Immigration Litigation, United States** 29 **Department of Justice, Washington,** 30 **D.C.** 31UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Jiucheng Wen, a native and citizen of China, 5 seeks review of a July 8, 2013 decision of the BIA affirming 6 an October 1, 2012 decision of an Immigration Judge (“IJ”) 7 denying Wen’s application for asylum, withholding of removal, 8 and relief under the Convention Against Torture (“CAT”). In 9 re Jiucheng Wen, No. A205 032 463 (B.I.A. July 8, 2013), aff’g 10 No. A205 032 463 ( Immig. Ct. N.Y. City Oct. 1, 2012). We 11 assume the parties’ familiarity with the underlying facts and 12 procedural history in this case. 13 Under the circumstances of this case, we have considered 14 both the IJ’s and the BIA’s opinions “for the sake of 15 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 16 2008) (per curiam) (internal quotation marks omitted). The 17 applicable standards of review are well established. See 8 18 U.S.C. § 1252(b)(4)(B);Yanqin Weng v. Holder, 562 F.3d 510, 19 513 (2d Cir. 2009). 20 Wen did not claim to have suffered past persecution, so 21 he needed to show a well-founded fear of future persecution. 22

28 C.F.R. § 1208.13(b)(2). “Put simply, to establish a 1 well-founded fear of persecution in the absence of any 2 evidence of past persecution, an alien must make some showing 3 that authorities in his country of nationality are either 4 aware of his activities or likely to become aware of his 5 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d 6 Cir. 2008) (per curiam). 7 The agency reasonably concluded that Wen failed to make 8 that showing. Wen testified that his father reported that the 9 Chinese police have visited his home seven times to threaten 10 Wen with persecution if he returns. His father’s letter 11 attested to one such visit. When pressed on this 12 inconsistency, Wen testified that the six other visits 13 occurred after his father wrote the letter, and that his 14 attorney never asked for an updated one. The agency was not 15 compelled to credit this explanation. Majidi v. Gonzales , 430 16 F.3d 77, 80-81 (2d Cir. 2005). Given the inconsistency, and 17 the fact that Wen’s father was an interested witness who was 18 unavailable for cross examination, the agency was also within 19 its discretion to discount the letter. Xiao Ji Chen v. U.S. 20 Dep’t of Justice , 471 F.3d 315, 342 (2d Cir. 2006) (weight 21 afforded evidence lies largely within the discretion of the 22

3agency); Matter of H-L-H- & Z-Y-Z- , 25 I&N Dec. 209, 215 (BIA 1 2010) (agency can give little weight to document drafted by 2 interested witness not subject to cross-examination), rev’d on 3 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d 4 Cir. 2012). 5 Wen’s testimony that his ex-wife received a similar visit 6 did not sufficiently bolster his claim: he failed to provide 7 any corroborating evidence of the visit. “Where the trier of 8 fact determines that the applicant should provide evidence 9 that corroborates otherwise credible testimony, such evidence 10 must be provided unless the applicant does not have the 11 evidence and cannot reasonably obtain the evidence.” Yan Juan 12 Chen v. Holder, 658 F.3d 246, 252 (2d Cir. 2011) (per curiam) 13 (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)). The agency was not 14 compelled to accept Wen’s explanation that he did not submit 15 an affidavit from his ex-wife because their relationship is 16 strained. 17 Wen also posited that the Chinese government could 18 identify him by cross-matching surveillance footage of him 19 demonstrating outside the Chinese consulate, his Internet 20 articles on the China Democracy Party (“CDP”) website, his 21 Chinese household registration identification, and the exit 22 record on his passport. The agency was not compelled to make 23
4these inferential leaps. Indeed, “[i]n the absence of solid 1 support in the record for [an applicant’s] assertion that he 2 will be [persecuted], his fear is speculative at best.”Jian 3 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per 4 curiam). Record evidence shows that the Chinese government 5 monitors electronic communications within its own borders, but 6 that does not mean it surveils all protests in the United 7 States or that it “is aware of every anti-Communist or 8 pro-democracy piece of commentary published online.” Y.C. v. 9 Holder, 741 F.3d 324, 334 (2d Cir. 2013). 10 Nor did the agency err in finding that Wen failed to 11 establish that the Chinese government has a pattern or 12 practice of persecuting people similarly situated to him. See 13 8 C.F.R. § 1208.13(b)(2)(iii)(A). At his merits hearing, Wen 14 highlighted three CDP members who were persecuted when they 15 returned to China. But as the IJ noted, one was a founding 16 member of the CDP and the other two were members of CDP in 17 China. Wen, on the other hand, joined the CDP in the United 18 States. On appeal, Wen has highlighted the plight of an 19 artist who was beaten and placed on house arrest in China. 20 But the country report he cites identifies the person as an 21 “artist and activist,” not a CDP member, and says nothing 22 about him engaging in pro-democracy protests in the United 23
States. 24 5Having reasonably found that Wen failed to establish the 1 objective likelihood of persecution needed for asylum, the 2 agency did not err in denying withholding of removal and 3 relief under the CAT, because these claims shared the same 4 factual predicate. See Paul v. Gonzales , 444 F.3d 148, 156-57 5 (2d Cir. 2006). 6 For the foregoing reasons, the petition for review is 7 DENIED. As we have completed our review, the pending motion 8 for a stay of removal in this petition is DISMISSED as moot. 9

10
FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12 13 14

6