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.

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 15th 4 day of July, two thousand fourteen.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 BARRINGTON D. PARKER,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges. 

11 _____________________________________

12

13 JIUCHENG WEN,

14 Petitioner, 

15

16 v. 13-2892

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________ 22

23 FOR PETITIONER: Zhong Yue Zhang, New York, New York.

24

25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

26 General; Cindy S. Ferrier, Assistant

27 Director; Michele Y.F. Sarko, Trial

28 Attorney, Civil Division, Office of

29 Immigration Litigation, United States

30 Department of Justice, Washington,

31 D.C.
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 is

4 DENIED.

5 Petitioner Jiucheng Wen, a native and citizen of China,

6 seeks review of a July 8, 2013 decision of the BIA affirming

7 an October 1, 2012 decision of an Immigration Judge (“IJ”)

8 denying Wen’s application for asylum, withholding of removal,

9 and relief under the Convention Against Torture (“CAT”). In

10 re Jiucheng Wen, No. A205 032 463 (B.I.A. July 8, 2013), aff’g

11 No. A205 032 463 (Immig. Ct. N.Y. City Oct. 1, 2012). We

12 assume the parties’ familiarity with the underlying facts and

13 procedural history in this case. 

14 Under the circumstances of this case, we have considered

15 both the IJ’s and the BIA’s opinions “for the sake of

16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

17 2008) (per curiam) (internal quotation marks omitted). The

18 applicable standards of review are well established. See 8

19 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

20 513 (2d Cir. 2009).

21 Wen did not claim to have suffered past persecution, so

22 he needed to show a well-founded fear of future persecution. 

2
1 8 C.F.R. § 1208.13(b)(2). “Put simply, to establish a

2 well-founded fear of persecution in the absence of any

3 evidence of past persecution, an alien must make some showing

4 that authorities in his country of nationality are either

5 aware of his activities or likely to become aware of his

6 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d

7 Cir. 2008) (per curiam).

8 The agency reasonably concluded that Wen failed to make

9 that showing. Wen testified that his father reported that the

10 Chinese police have visited his home seven times to threaten

11 Wen with persecution if he returns. His father’s letter

12 attested to one such visit. When pressed on this

13 inconsistency, Wen testified that the six other visits

14 occurred after his father wrote the letter, and that his

15 attorney never asked for an updated one. The agency was not

16 compelled to credit this explanation. Majidi v. Gonzales, 430

17 F.3d 77, 80-81 (2d Cir. 2005). Given the inconsistency, and

18 the fact that Wen’s father was an interested witness who was

19 unavailable for cross examination, the agency was also within

20 its discretion to discount the letter. Xiao Ji Chen v. U.S.

21 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (weight

22 afforded evidence lies largely within the discretion of the

3
1 agency); Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 215 (BIA

2 2010) (agency can give little weight to document drafted by

3 interested witness not subject to cross-examination), rev’d on

4 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d

5 Cir. 2012). 

6 Wen’s testimony that his ex-wife received a similar visit

7 did not sufficiently bolster his claim: he failed to provide

8 any corroborating evidence of the visit. “Where the trier of

9 fact determines that the applicant should provide evidence

10 that corroborates otherwise credible testimony, such evidence

11 must be provided unless the applicant does not have the

12 evidence and cannot reasonably obtain the evidence.” Yan Juan

13 Chen v. Holder, 658 F.3d 246, 252 (2d Cir. 2011) (per curiam)

14 (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)). The agency was not

15 compelled to accept Wen’s explanation that he did not submit

16 an affidavit from his ex-wife because their relationship is

17 strained.

18 Wen also posited that the Chinese government could

19 identify him by cross-matching surveillance footage of him

20 demonstrating outside the Chinese consulate, his Internet

21 articles on the China Democracy Party (“CDP”) website, his

22 Chinese household registration identification, and the exit

23 record on his passport. The agency was not compelled to make

4
1 these inferential leaps. Indeed, “[i]n the absence of solid

2 support in the record for [an applicant’s] assertion that he

3 will be [persecuted], his fear is speculative at best.” Jian

4 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per

5 curiam). Record evidence shows that the Chinese government

6 monitors electronic communications within its own borders, but

7 that does not mean it surveils all protests in the United

8 States or that it “is aware of every anti-Communist or

9 pro-democracy piece of commentary published online.” Y.C. v.

10 Holder, 741 F.3d 324, 334 (2d Cir. 2013).

11 Nor did the agency err in finding that Wen failed to

12 establish that the Chinese government has a pattern or

13 practice of persecuting people similarly situated to him. See

14 8 C.F.R. § 1208.13(b)(2)(iii)(A). At his merits hearing, Wen

15 highlighted three CDP members who were persecuted when they

16 returned to China. But as the IJ noted, one was a founding

17 member of the CDP and the other two were members of CDP in

18 China. Wen, on the other hand, joined the CDP in the United

19 States. On appeal, Wen has highlighted the plight of an

20 artist who was beaten and placed on house arrest in China. 

21 But the country report he cites identifies the person as an

22 “artist and activist,” not a CDP member, and says nothing

23 about him engaging in pro-democracy protests in the United

24 States. 

5
1 Having reasonably found that Wen failed to establish the

2 objective likelihood of persecution needed for asylum, the

3 agency did not err in denying withholding of removal and

4 relief under the CAT, because these claims shared the same

5 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57

6 (2d Cir. 2006). 

7 For the foregoing reasons, the petition for review is

8 DENIED. As we have completed our review, the pending motion

9 for a stay of removal in this petition is DISMISSED as moot. 

10

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

13

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