Xiaoxiang Li, Petitioner, v. Loretta E. Lynch, United States Attorney General,* Respondent.

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United States Court of Appeals, Second Circuit.

Xiaoxiang Li, Petitioner, v. Loretta E. Lynch, United States Attorney General,* Respondent.


Decided: May 24, 2016

PRESENT: AMALYA L. KEARSE, DENNIS JACOBS, BARRINGTON D. PARKER, Circuit Judges. FOR PETITIONER: GARY J. YERMAN, YERMAN & ASSOCIATES, LLC, New York, New York. FOR RESPONDENT: DANIEL ERIC GOLDMAN (with John S. Hogan & Robbin K. Blaya on the brief) for Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Department of Justice Civil Division, Washington, D.C.


UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, and DECREED that the petition for review is DENIED.

Petitioner Xiaoxiang Li, a native of the People's Republic of China, seeks review of a March 11, 2015 decision of the BIA affirming an October 2, 2012 decision of an Immigration Judge (“IJ”) denying Li's application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.

“When the BIA issues an opinion, ‘the opinion becomes the basis for judicial review of the decision of which the alien is complaining.’ ” Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005) (quoting Niam v. Ashcroft, 354 F.3d 652, 655 (7th Cir. 2004)). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); see also Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

The Attorney General may grant asylum to an alien upon a determination that the alien is a “refugee” under 8 U.S.C. § 1101(a)(42). See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 427-28 (1987). The provision defines a refugee as a person “who is unable or unwilling to return to” his native country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Thus “[a]n applicant may qualify for refugee status in two ways. First, he may demonstrate that he has suffered past persecution, in which case a presumption arises that he has a well-founded fear of future persecution.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). This Li has not undertaken to do.

“Second, the applicant may establish that he has a well-founded fear of future persecution, which requires that the alien present credible testimony that he subjectively fears persecution and establishes that his fear is objectively reasonable.” Id.

The BIA correctly determined that Li failed to adduce sufficient evidence to support his claim. Li proffered no evidence that the Chinese government was aware of his activities in the United States on behalf of the China Democracy Party. The diminished weight given to the unsworn and unsigned letter written by Li's father was within the sound discretion of the agency. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“The agency [was entitled to give such a] letter ‘very little evidentiary weight,’ both because it was unsworn and because it was submitted by an interested witness. We defer to the agency's determination of the weight afforded to an alien's documentary evidence.”). In any event, the letter does not indicate that the Chinese government was aware of Li's activities, but rather that some inquiry was made as to whether Li joined an anti-Chinese Communist Party organization in the United States. Nor has Li, in order to sustain his evidentiary burden, shown a pattern or practice of persecution directed at similarly situated individuals based on the practice of Christianity; the record indicates that although underground Christian groups are targeted in parts of China, the practice is not uniform throughout the country. The objective component of Li's claim is accordingly lacking. See Huang v. I.N.S., 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid support in the record ․ [the alien's] fear is speculative at best.”).

Our decision on Li's asylum claim is fatal to his withholding of removal claim; “[b]ecause the withholding of removal analysis overlaps factually with the asylum analysis, but involves a higher burden of proof, an alien who fails to establish his entitlement to asylum necessarily fails to establish his entitlement to withholding of removal.” Ramsameachire, 357 F.3d at 178. And Li did not adequately raise his CAT claim before the BIA; it is waived. See Foster v. I.N.S., 376 F.3d 75, 78 (2d Cir. 2004) (“To preserve a claim, we require ‘[p]etitioner to raise issues to the BIA in order to preserve them for judicial review.’ ” (alteration and emphasis in original) (quoting Cervantes-Ascencio v. I.N.S., 326 F.3d 83, 87 (2d Cir. 2003))).

For the foregoing reasons, the petition for review is DENIED. Petitioner's motion for a stay of removal is DENIED.