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CHEN v. GARLAND (2021)

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United States Court of Appeals, Second Circuit.

Xiaocui CHEN, Petitioner, v. Merrick B. GARLAND, United States Attorney General,1 Respondent.

19-10 NAC

Decided: April 19, 2021

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, RICHARD C. WESLEY, WILLIAM J. NARDINI, Circuit Judges. FOR PETITIONER: Gerald Karikari, Karikari & Associates, P.C., New York, NY. FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Micah Engler, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.


Petitioner Xiaocui Chen, a native and citizen of China, seeks review of a December 19, 2018, decision of the BIA affirming a November 8, 2017, decision of an Immigration Judge (“IJ”) denying Chen's application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xiaocui Chen, No. A XXX XX0 445 (B.I.A. Dec. 19, 2018), aff'g No. A XXX XX0 445 (Immig. Ct. N.Y. City Nov. 8, 2017). We assume the parties’ familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed the IJ's decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013).

The agency denied Chen's asylum claim as time barred and alternatively denied all relief on the merits. We find legal error in the agency's time bar ruling as neither the IJ nor the BIA addressed Chen's argument that her conversion to Christianity while in the United States was a change in circumstances that excused her untimely filing. See 8 U.S.C. § 1158(a)(2)(B), (D); Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009) (holding that an error of law may arise where facts have “been totally overlooked”). However, we decline to remand because, as discussed below, we find no error in the agency's alternative and dispositive conclusion that Chen failed to establish a well-founded fear of persecution. See Gurung v. Barr, 929 F.3d 56, 62 (2d Cir. 2019) (noting that remand is not necessary “when the IJ articulates an alternative and sufficient basis for her determination”).

Absent past persecution, an asylum applicant may establish eligibility for relief by demonstrating a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(2); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). To do so, an applicant must show either a reasonable possibility that she would be singled out for persecution or that the country of removal has a “pattern or practice” of persecuting similarly situated individuals. 8 C.F.R. § 1208.13(b)(2)(iii); see In re A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005) (defining pattern or practice as “systemic or pervasive” persecution). “[T]o establish eligibility for relief based exclusively on activities undertaken after h[er] arrival in the United States, an alien must make some showing that authorities in h[er] country of nationality are (1) aware of h[er] activities or (2) likely to become aware of h[er] activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008).

The agency reasonably found that Chen failed to satisfy her burden of proof because her evidence that Chinese police were aware of her religious practice in the United States consisted of vague testimony and letters from friends and family members that were entitled to minimal weight, and her country conditions evidence did not reflect a pattern or practice of persecution of Christians in China. Chen alleged that Chinese authorities were aware of her practice of Christianity in the United States because she had discussed Christianity on the telephone with people in China. But her information lacked detail about who she spoke to or when, and her supporting letters were authored by individuals not available for cross-examination. See Jian Xing Huang v. U.S. INS, 421 F.3d 125, 128 (2d Cir. 2005) (requiring “credible, specific, and detailed evidence”); Y.C., 741 F.3d at 332, 334 (holding that “[w]e generally defer to the agency's evaluation of the weight to be afforded an applicant's documentary evidence” and upholding BIA's decision not to credit letter from applicant's spouse). Moreover, the country conditions evidence reported tens of millions of Christians practicing in unregistered churches in China. The agency did not err in determining that this evidence failed to demonstrate a pattern or practice of persecution of Christians in China based on the record in this case. See 8 C.F.R. § 1208.13(b)(2)(iii); Santoso v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009); Mufied v. Mukasey, 508 F.3d 88, 92–93 (2d Cir. 2007). Because the agency reasonably found that Chen failed to demonstrate the well-founded fear of persecution needed for asylum, she “necessarily” failed to meet the higher standards for withholding of removal and CAT relief. Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.

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