11‐2749‐ag, 11‐3217‐ag Y.C. v. Holder, X.W. v. Holder

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2012

(Argued: April 29, 2013 Decided: December 18, 2013)

Docket Nos. 11‐2749‐ag, 11‐3217‐ag

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

Y.C.,

Petitioner,

‐ v ‐

Eric H. Holder, Jr., United States Attorney General,

Respondent.

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

X.W.

Petitioner,

‐ v ‐

Eric H. Holder, Jr., United States Attorney General, Respondent.*

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

Before: JACOBS and SACK, Circuit Judges, and RAKOFF, District Judge.**

Petitions for review of two decisions by the Board of Immigration

Appeals heard in tandem. The decisions denied the petitionersʹ applications for

asylum, withholding of removal, and protection under the Convention Against

Torture. Petitioners, both natives and citizens of the Peopleʹs Republic of China,

argue that they each have a well‐founded fear of future persecution if removed to

China because each has engaged in pro‐democracy activities in the United States.

We conclude that there is insufficient evidence to establish that Chinese

authorities are aware or likely to become aware of the petitionersʹ pro‐democracy

activities in the United States, and there is in any event insufficient evidence to

suggest that the petitioners would be targeted by Chinese authorities on that

basis. Accordingly, we deny Y.C.ʹs petition for review in its entirety, and deny in

part and dismiss in part X.W.ʹs petition for review.

* The Clerk of Court is directed to amend the official caption in each case as shown above. ** The Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.

2 THOMAS V. MASSUCCI, New York, NY, for Petitioner Y.C., No. 11‐2749‐ag.

RUSSELL J.E. VERBY, Senior Litigation Counsel, Office of Immigration Litigation (Tony West, Assistant Attorney General, Civil Division, and Kristin A. Moresi, Trial Attorney, Office of Immigration Litigation, on the brief), United States Department of Justice, Washington, D.C., for Respondent, in No. 11‐2749‐ag.

GANG ZHOU, New York, NY, for Petitioner X.W., in No. 11‐3217‐ag.

RUSSELL J.E. VERBY, Senior Litigation Counsel, Office of Immigration Litigation (Tony West, Assistant Attorney General, Civil Division, Luis E. Perez, Senior Litigation Counsel, and Remi da Rocha‐Afodu, Attorney, Office of Immigration Litigation, on the brief), United States Department of Justice, Washington, D.C., for Respondent, No. 11‐3217‐ag.

SACK, Circuit Judge:

Petitioner Y.C. seeks review of a 2011 order of the Board of

Immigration Appeals (ʺBIAʺ) affirming a 2009 decision of Immigration Judge

(ʺIJʺ) Sandy K. Hom, which denied Y.C.ʹs application for asylum, withholding of

removal, and relief under the Convention Against Torture, Dec. 10, 1984, S.

Treaty Doc. No. 100‐20 (1988) (ʺCATʺ). Petitioner X.W. seeks review of a 2011

3 order of the BIA affirming a 2009 decision of IJ Alan Vomacka, which

pretermitted X.W.ʹs application for asylum and denied his application for

withholding of removal and CAT relief. Both petitioners premised their

applications on pro‐democracy activities in which they engaged after arriving in

the United States, including the publication of articles criticizing the Chinese

government. Although both petitioners assert that they revealed their

participation in pro‐democracy organizations on the Internet, neither adduced

sufficient evidence that Chinese authorities are aware or likely to become aware

of their political activities in the United States or that they will in any event be

persecuted on that basis. Y.C.ʹs petition for review is therefore denied in its

entirety; X.W.ʹs petition for review is denied in part and dismissed in part.

BACKGROUND

Y.C.

Y.C., a native and citizen of the Peopleʹs Republic of China and of

Korean descent, entered the United States in December 2003. In November 2004,

she filed an application for asylum, withholding of removal, and CAT relief on

the basis of her political opinion. At a hearing in March 2005, before IJ Hom, Y.C.

testified to the following effect: She was terminated from her accounting job in

4 China for ʺwhistle blowing,ʺ after asserting the misuse of company funds.

Afterward, she was unable to find new employment. She left China for the

United States in November 2003. Upon her arrival here, she joined the Chinese

Alliance for Democracy1 (ʺCADʺ), which is described as a democratic association

opposed to communism. Y.C. testified that she performed volunteer secretarial

work for the CAD. She further stated that her husband, who remains in China,

was visited by Chinese authorities who advised him to tell Y.C. to stop working

for the CAD. In further support of her application, Y.C. submitted, among other

things, a copy of an article she wrote for the November 2004 issue of Beijing

Spring, a CAD publication. The article is a brief editorial recounting her escape

from China and subsequent membership in the Chinese pro‐democracy

movement. Y.C. did not present any corroborating evidence from her husband

or from fellow CAD members familiar with her pro‐democracy activities in the

United States.

In an oral decision, IJ Hom denied Y.C.ʹs application for asylum,

withholding of removal, and CAT relief. The IJ found that any harassment Y.C.

1 Y.C. refers to this organization variously as the ʺChinese Alliance for Democracy,ʺ the ʺChinese Democracy Unityʺ and the ʺChinese Democratic Association.ʺ

5 endured in China arose from an employment dispute and did not rise to the level

of persecution on the basis of a protected ground. The IJ also concluded that Y.C.

failed to demonstrate an objectively reasonable well‐founded fear of future

persecution on the basis of her pro‐democracy activities in the United States,

noting that she had offered only scant, general testimony in support of this claim.

Y.C. appealed to the BIA, which, in 2006, affirmed the IJʹs decision

without opinion. In February 2008, this Court granted Y.C.ʹs first petition for

review and remanded the case to the BIA. We found no error in the IJʹs denial of

Y.C.ʹs past persecution claim, but concluded that the IJ failed to address Y.C.ʹs

claim that she feared future persecution on the basis of the Beijing Spring article.

On remand, the BIA vacated its prior decision affirming the IJʹs decision and

remanded the case to the IJ to consider Y.C.ʹs claim of future persecution based

on her pro‐democracy activities in the United States.

On remand, Y.C. submitted the following documentary evidence: (1)

a letter dated September 1, 2004, from the CAD attesting that she had been a

member of the organization since July 2004, that she volunteered at one of the

organizationʹs departments, and that she published articles in Beijing Spring; and

(2) a letter dated January 28, 2009, from her husband stating that local public

6 security officers had visited his home in China eight times since 2005, informing

him that they were aware of Y.C.ʹs pro‐democracy activities in the United States

and instructing him to tell her to stop or she will be punished upon her return to

China.

At a hearing in February 2009, Y.C. appeared before IJ Hom to

supplement the record with respect to her future persecution asylum claim.2 Y.C.

testified that she assisted the CAD by typing, filing, and cleaning. She attended

CAD meetings and participated in candlelight vigils in front of the Chinese

Embassy in New York.

Y.C. repeated her previous testimony that she published one

editorial in Beijing Spring and that her husband informed her that local

authorities in China were aware of her pro‐democracy activities in the United

States. Y.C. acknowledged that the article she wrote did not include her

husbandʹs name or the city where he lived, and she conceded that she does not

know whether the magazine is circulated in China, much less how Chinese

2 At some point prior to the hearing, Y.C. moved to Chicago. It is unclear whether she has continued her affiliation with the CAD since then, or whether she has engaged in other pro‐democracy activities while there.

7 authorities would have discovered that she wrote the article. Y.C. asserted,

however, that the Chinese government knows ʺall the names.ʺ

In March 2009, the IJ again denied Y.C.ʹs application for asylum,

withholding of removal, and CAT relief. The IJ gave little evidentiary weight to

the letters from the CAD and Y.C.ʹs husband because they were not given under

oath and because they lacked evidence of authenticity. The IJ also faulted Y.C. for

failing to present any evidence corroborating her pro‐democracy activities in the

United States, particularly because the CAD is headquartered in New York City

and a fellow CAD member or participant in the candlelight vigils might have

appeared or submitted a sworn affidavit with ease. The IJ also thought significant

the fact that Y.C. did not know whether Beijing Spring was circulated in China.

Accordingly, the IJ concluded that Y.C. had not satisfied her burden of proof for

either asylum or withholding of removal, and, because she had not offered any

evidence that she would be tortured in China, had failed to establish eligibility for

CAT relief.

Y.C. appealed to the BIA, which, in June 2011, dismissed her appeal.

The BIA concluded that Y.C. had not established that she is affiliated with an

organization that is banned in China, or that the Chinese authorities have any

8 concerns directed at CAD members. The BIA determined that, even if the CAD

were a banned organization, Y.C. had not demonstrated that the authorities in

China were aware or likely to become aware of her involvement in the

organization. Specifically, the BIA determined that there was no evidence heat

her brief editorial was ever circulated in China or posted on the Internet in a

manner that Chinese authorities could access it. Furthermore, the BIA reasoned,

Y.C.ʹs claim that she participated in annual candlelight vigils at the Chinese

embassy was insufficient to show that the Chinese government could identify her

or would attempt to target her.

The BIA further concluded that, even if the Chinese government were

aware of Y.C.ʹs pro‐democracy activities, there was no evidence in the record

establishing how the government would view her activities in the United States,

or that it would treat her similarly to political dissidents who carry out their

activities in China. The BIA therefore agreed that Y.C. had failed to meet the

evidentiary burden for asylum and withholding of removal relief, and that she

had not demonstrated eligibility for CAT relief.

9 X.W.

X.W., a native and citizen of the Peopleʹs Republic of China, entered

the United States in November 2003 and, in June 2008, filed an application for

asylum, withholding of removal, and CAT relief, on the basis of his political

opinion. In a written statement attached to his application, X.W. asserted that he

had been arrested, detained for 15 days, beaten and kicked in the stomach, and

fined in June 2001 because he protested the local governmentʹs denial of disaster

assistance after a typhoon destroyed his familyʹs home and crops. Additionally,

X.W. stated that, if returned, he feared he would be persecuted for his current and

active membership in the Chinese Democracy Party (ʺCDPʺ), which operates in

the United States.

At a hearing in August 2009 before IJ Vomacka, X.W. testified that he

joined the CDP in June 2007. Since then, he has participated in many pro‐

democracy demonstrations, including protests in front of the United Nations and

the Chinese Embassy. He also assisted with the CDPʹs recruitment efforts by

stuffing envelopes with pre‐printed CDP propaganda, addressing the envelopes –

using his personal information as the return address – and mailing them to

university students in China.

10 X.W. testified that evidence of his pro‐democracy activities is

available on the Internet. First, X.W. created an individual member page on the

CDPʹs website; the page includes his headshot, a summary of his CDP activities,

and links to photographs of him protesting in New York. Moreover, X.W.

published two articles on his CDP member site: one, dated September 2007,

briefly discusses X.W.ʹs view that Chinaʹs Communist Party oppresses peasant

farmers; and a second, dated November 2007, blames the difficulties faced by

Chinese peasants on government corruption. In his November 2007 essay, X.W.

noted that he had not take up his pro‐democracy activities until he came to the

United States.

With respect to the timeliness of his application, X.W. testified that he

did not apply for asylum when he first arrived in the United States on the advice

of an unidentified lawyer. Although he joined the CDP in June 2007, he asserted

that he did not discover the Chinese governmentʹs negative view of the

organization until December 2007. X.W. testified that he did not apply for asylum

at that point because he intended to return to China to visit his ailing grandfather,

who died the following February.

11 In an oral decision in August 2009, the IJ denied X.W.ʹs asylum

application on the basis of his failure either to file it within one year of his arrival

in the United States or to demonstrate changed or extraordinary circumstances

under

(a)(2)(D). In doing so, the IJ doubted X.W.ʹs explanation that

he initially delayed filing his application on the advice of unidentified counsel.

Furthermore, the IJ noted that X.W. did not file his application within a reasonable

time after he began his activities with the CDP. And the IJ found that the illness of

X.W.ʹs grandfather was not a credible excuse for his delay in filing, nor did it

create the extraordinary circumstances necessary to justify this delay.

The IJ determined that X.W. was not credible because of

inconsistencies between his written asylum application and his testimony as to the

number of times he was kicked during his detention in China in June 2001. The IJ

also based the adverse credibility determination in part on his observation that

X.W. was nonresponsive at the hearing, and that he ʺengaged in a certain kind of

filibustering in regard to certain questions.ʺ In addition to finding that X.W. was

not credible regarding his alleged persecution while still living in China, the IJ

12 concluded that this lack of credibility also called into question X.W.ʹs testimony

related to his activities in the United States.

Having found X.W.ʹs asylum application untimely, the IJ went on to

conclude that X.W. failed to meet his burden for withholding of removal and for

CAT relief. The IJ found that the Chinese government was not aware or likely to

become aware of X.W.ʹs pro‐democracy activities because X.W. had only a low‐

level role in the CDP, and because X.W.ʹs relatively common name made it

unlikely that the Chinese government could identify him from his CDP member

site. The IJ also noted that a letter X.W. submitted from his parents did not

indicate that authorities in China had become aware of his activities with the CDP.

Moreover, the IJ was not persuaded that the Chinese government has persecuted

or would persecute members of the CDP who had only been active in the United

States, and there was little evidence in the record to support such a claim.

Although X.W. did alert the IJ to the experience of one CDP member who was

arrested in China as a result of his political activity there, the IJ found that this

single incident was insufficient to demonstrate that persecution was probable, as

opposed to merely possible, upon X.W.ʹs return.

13 X.W. appealed to the BIA, which dismissed his appeal in July 2011.

The BIA agreed with the IJ that the death of X.W.ʹs grandfather was not an

ʺextraordinary circumstanceʺ excusing the untimely filing of his asylum

application because it was not ʺdirectly related,ʺ within the meaning of

(a)(5), to his failure to meet the deadline. In any event, according to the

BIA, X.W. did not file his application within a reasonable time after joining the

CDP in June 2007. The BIA also perceived no clear error in the IJʹs adverse

credibility determination, noting that X.W.ʹs testimony was at times inconsistent,

vague, and nonresponsive.

Nonetheless assuming that X.W.ʹs testimony was credible, the BIA

concluded that X.W. failed to meet his burden for asylum, withholding of

removal, and CAT relief on the merits because he did not establish a well‐founded

fear of persecution based on his activities with the CDP. The BIA agreed with the

IJ that X.W.ʹs activities were low‐level, and that there was no evidence suggesting

that Chinese authorities had knowledge of them. Y.C. and X.W. now petition this

Court for review of the BIAʹs decisions.

14 DISCUSSION

I. Legal Standards

A. Standard of Review

ʺWhen the BIA briefly affirms the decision of an IJ and adopts the IJʹs

reasoning in doing so, we review the IJʹs and the BIAʹs decisions together.ʺ Jigme

Wangchuck v. Depʹt of Homeland Sec.,

(2d Cir. 2006) (internal

quotation marks and brackets omitted). When the BIA does not expressly adopt

the IJʹs decision, but ʺclosely tracks the IJʹs reasoning,ʺ we also may review both

decisions.

We review the BIAʹs ʺlegal conclusions de novo, and its factual

findings, including adverse credibility determinations, under the substantial

evidence standard.ʺ Shi Jie Ge v. Holder,

, 93‐94 (2d Cir. 2009) (citation

omitted). We generally defer to the agencyʹs evaluation of the weight to be

afforded an applicantʹs documentary evidence. Xiao Ji Chen v. U.S. Depʹt of Justice,

(2d Cir. 2006). Similarly, an applicant may be required to

provide corroborating evidence to substantiate his or her claim or to explain why

such documentation is unavailable, and an IJ may rely on the failure to submit

15 such evidence in evaluating whether the applicant has met the relevant burden of

proof. Kyaw Zwar Tun v. INS,

, 563‐64 (2d Cir. 2006).

B. Asylum, Withholding of Removal, and CAT Relief

To establish eligibility for asylum, an applicant must show that he or

she is a ʺrefugeeʺ – that is, a person outside the country of his or her nationality

who is unable or unwilling to return to that country because he or she has

suffered persecution, or has a well‐founded fear of future persecution, on account

of his or her race, religion, nationality, membership in a particular social group, or

political opinion.

(a)(42). An asylum applicant can show a well‐

founded fear of future persecution in two ways: (1) by demonstrating that he or

she ʺwould be singled out individually for persecutionʺ if returned, or (2) by

proving the existence of a ʺpattern or practice in [the] . . . country of nationality . . .

of persecution of a group of persons similarly situated to the applicantʺ and

establishing his or her ʺown inclusion in, and identification with, such group.ʺ

(b)(2)(iii). Importantly, ʺto establish a well‐founded fear of

persecution in the absence of any evidence of past persecution, an alien must

make some showing that authorities in his [or her] country of nationality are

16 either aware of his [or her] activities or likely to become aware of his [or her]

activities.ʺ Hongsheng Leng v. Mukasey,

(2d Cir. 2008) (per

curiam). For an asylum claim, the applicant must show a ʺreasonable possibilityʺ

of future persecution.

To establish eligibility for withholding of removal, an applicant must

show that it is more likely than not that ʺhis or her life or freedom would be

threatened in [China] on account of [the applicantʹs] race, religion, nationality,

membership in a particular social group, or political opinion.ʺ

(b). Whereas an asylum claim requires only a reasonable possibility of

future persecution, withholding of removal requires the applicant to show a ʺclear

probabilityʺ that such persecution will occur if the applicant is returned to his or

her home county. Hongsheng Leng,

.

To establish eligibility for CAT relief, the applicant must show that ʺit

is more likely than not that he or she would be tortured if removed to the

proposed country of removal.ʺ

(c)(2).

17 II. Y.C.

In an apparent misreading of our decision in Shi Jie Ge v. Holder,

(2d Cir. 2009), the BIA concluded that Y.C. could not establish her status

as a refugee because there is no evidence that the CAD is a banned organization in

China. In Ge, we decided that the petitioner, a member of the CDP, ʺmay . . .

demonstrate a well‐founded fear of future persecution by demonstrating that his

involvement in a banned organization may become known after his return.ʺ

. That statement was not a suggestion that the Chinese governmentʹs banning

of a pro‐democracy organization is a legal prerequisite to a successful asylum

claim, nor was it intended to restrict the availability of asylum to members of the

CDP.3 Instead, our reference to a ʺbannedʺ organization was specific to the facts

of the case. See U.S. Depʹt of State, Country Reports on Human Rights Practices:

China (includes Tibet, Hong Kong, and Macau), at 5 (Mar. 11, 2008) (characterizing

3 Indeed, we have reviewed claims brought by members of several other pro‐democracy groups in the United States. See, e.g., Yinghua Jin v. Holder, 517 F. Appʹx 43 (2d Cir. 2013) (summary order) (Chinese Democracy and Justice Party); Ying Chen v. Holder, 368 F. Appʹx 202 (2d Cir. 2010) (summary order) (Federation for Democracy in China); Yan Zheng Weng v. Holder, 372 F. Appʹx 126 (2d Cir. 2010) (summary order) (Christian Democracy Party); Xiu Li Zhao v. Holder, 359 F. Appʹx 190 (2d Cir. 2009) (summary order) (China Freedom and Democracy Party).

18 the CDP as ʺbannedʺ). And while the fact that a political organization is banned

in China may be probative of the governmentʹs awareness of that organizationʹs

members and activities, it is neither a proxy for such awareness, nor is it the only

evidence with which an applicant might prove his or her claim.

The apparent error in the BIAʹs analysis, however, was harmless. The

agency went on to conduct a de novo review of Y.C.ʹs fear‐of‐future‐persecution

claim without relying on the purported banned organization ʺrequirement.ʺ

Substantial evidence in the record supports the agencyʹs conclusion that Y.C.

failed to demonstrate that Chinese authorities are aware or likely to become aware

of her pro‐democracy activities in the United States such that there is a reasonable

possibility that she would be persecuted in China. Y.C. offered two examples of

pro‐democracy activity in the United States for which she feared persecution in

China: (1) the publication of her Beijing Spring editorial; and (2) her participation

in candlelight vigils.

With respect to the first, Y.C. did not adduce sufficient evidence that

Chinese authorities are aware of her publication of the Beijing Spring article. Y.C.

did present some evidence that Chinese authorities monitor the Internet for

19 content the state deems controversial. The U.S. Department of State Country

Report for China notes that the Chinese government ʺtook steps to monitor

Internet use, control content, restrict information, and punish those who violated

regulations.ʺ U.S. Depʹt of State, Country Reports on Human Rights Practices: China

(includes Tibet, Hong Kong, and Macau), at 16 (Mar. 11, 2008). However, Y.C.

testified that she did not know whether Beijing Spring is circulated in China.

Moreover, even if we accept Y.C.ʹs suggestion that the Chinese government is

aware of every anti‐Communist or pro‐democracy piece of commentary published

online – which seems to us to be most unlikely – her claim that the government

would have discovered a single article published on the Internet more than eight

years ago is pure speculation. See Jian Xing Huang v. INS,

(2d

Cir. 2005) (per curiam) (ʺIn the absence of solid support in the record . . ., [an

applicantʹs] fear is speculative at best.ʺ); Yue Wen Zhong v. Holder, 482 F. Appʹx

628, 630 (2d Cir. 2012) (summary order) (ʺAlthough Zhong argues that the

Chinese government would have discovered the [four] anti‐Communist articles

that he published on the internet, that claim is speculative.ʺ).

20 Similarly, Y.C. failed to establish that Chinese authorities are aware of

her participation in candlelight vigils. The only evidence suggesting such

awareness is the letter from Y.C.ʹs husband stating that the Chinese authorities

had visited him at home to warn him that they knew his wife wrote an article

critical of the Chinese Communist Party and that she participated in

demonstrations outside the Chinese Consulate in New York City. The agency

gave the letter ʺvery little evidentiary weight,ʺ both because it was unsworn and

because it was submitted by an interested witness. We defer to the agencyʹs

determination of the weight afforded to an alienʹs documentary evidence. Xiao Ji

Chen,

. Coupled with Y.C.ʹs failure to provide any corroborating

evidence of her participation in candlelight vigils at all, we again find no ʺsolid

supportʺ for the claim that the Chinese government knows of Y.C.ʹs participation

in such demonstrations. Thus, there is insufficient evidence from which we

would be permitted to conclude that Chinese authorities are aware or likely to

become aware of her pro‐democracy activities in the United States.

Even if Chinese authorities were aware of her pro‐democracy

activities, moreover, nothing in the record compels a finding that Y.C. would be

21 persecuted on that basis if returned to China. The BIA noted that Y.C. had not

shown that anyone involved in the CAD has faced problems upon his or her

return to China. As described above, one way for an alien to demonstrate a well‐

founded fear is to show a pattern or practice in the home country of persecution of

persons ʺsimilarly situatedʺ to the applicant. See

(b)(2)(iii)(A).

But, contrary to the implication of the BIAʹs ruling, ʺsimilarly situatedʺ persons

need not present a total identity of circumstances. If that were so, the first

member of a democracy organization in the United States facing deportation

would never be able to establish a well‐founded fear of future persecution. The

BIAʹs evidentiary standard would treat this person as a veritable ʺminerʹs canary,ʺ

who might be returned only to perish for the benefit of future applicants.

Regardless, there is insufficient evidence in the record from which we

can conclude that Y.C. is at risk of persecution if returned to China. She cites to

the example of Wang Bingzhang, a founder of the CAD, who had lived in the

United States from 1982 to 1998; Wang Bingzhang was arrested and sentenced to

life imprisonment after he used a false passport to re‐enter China in order to

establish the China Democracy and Justice Party. See U.S. Depʹt of State, China:

22 Profile of Asylum Claims and Country Conditions, at 18 (June 2004). Whereas Y.C.

occasionally cleaned and filed papers for the CAD, and published a single

editorial – activity we would not characterize as ʺhigh profileʺ – Wang Bingzhang

spearheaded not one, but two pro‐democracy organizations. Moreover, the State

Department report notes that ʺ[some of Wang Bingzhangʹs] post‐1982 political

activities took place in China, distinguishing his case from those that involved

activity only in the United States.ʺ

The record is silent as to whether the

Chinese government views domestic pro‐democracy advocates differently from

Chinese nationals who espouse pro‐democracy ideals abroad. We cannot

conclude that Wang Bingzhang and Y.C. are similarly situated, or that the

example of Wang Bingzhang establishes a pattern or practice of persecution of

similarly situated persons such that Y.C. harbors an objectively reasonable fear of

persecution if she is returned to China. Cf. Yan Zhu Tang v. Holder, 429 F. Appʹx

59, 60 (2d Cir. 2011) (summary order) (ʺThe evidence Tang submitted . . . indicates

that the prominent leaders of pro‐democracy movements outside of China and

political dissidents within China have been persecuted. However, as the agency

found, their persecution does not establish that Tang is also at risk of persecution

23 if she [is] returned to China because she has been only a low‐level activist outside

of China.ʺ).

The agency reasonably determined that Y.C. failed to demonstrate a

well‐founded fear of persecution. Accordingly, there is no error in the denial of

her application for asylum. Because her claims for withholding of removal and

CAT relief are based on the same set of facts but are subject to a higher burden of

proof, there is no error in the agencyʹs denial of Y.C.ʹs withholding of removal and

CAT claims.

III. X.W.

A. Timeliness of X.W.ʹs Asylum Application

An asylum application must be ʺfiled within 1 year after the date of

the alienʹs arrival in the United States,ʺ

(a)(2)(B), unless the

applicant establishes ʺchanged circumstances which materially affect the

applicantʹs eligibility for asylum,ʺ

§ 1158(a)(2)(D). Changed circumstances can

include ʺactivities the applicant becomes involved in outside the country of feared

persecution that place the applicant at risk.ʺ

(a)(4)(i)(B). Under

(a)(3), no court shall have jurisdiction to review the BIAʹs finding that

24 an asylum application was untimely, or its finding that no change of

circumstances excused the late filing. See also Xiao Ji Chen, 471 F.3d at 323‐24. The

Court does, however, retain jurisdiction to review constitutional claims and

questions of law.

(a)(2)(D); Shi Jie Ge,

.

X.W.ʹs asylum application was filed almost five years after his entry

into the United States, and the BIA found that the death of his grandfather did not

excuse the late filing. Moreover, even if X.W.ʹs CDP activities constituted

ʺchanged circumstances,ʺ X.W. waited for one year after joining the CDP to file his

asylum application, a delay the BIA found to be unreasonably long. X.W. now

attempts to salvage jurisdiction over his pretermitted asylum claim by arguing

that the BIA denied him due process. Although the exact contours of X.W.ʹs

challenge are unclear, he appears to argue that the BIA denied him due process by

engaging in appellate factfinding. See, e.g., Padmore v. Holder,

(2d

Cir. 2010) (per curiam) (ʺ[W]hen the BIA engages in factfinding in contravention

of

(d)(3)(iv), it commits an error of law, which we have

jurisdiction to correct.ʺ4).

4

(d)(3)(iv) provides that, with the exception of taking ʺadministrative noticeʺ of ʺcommonly known facts,ʺ the BIA ʺwill not engage in factfinding in the course of deciding appeals.ʺ

25 X.W. has been afforded a full and fair opportunity to litigate his

claims before the BIA and this Court. We can find no discrepancies between the

IJʹs findings of fact and those relied on by the BIA, much less any evidence of

inappropriate appellate factfinding. Instead, the BIA explicitly affirmed the

pretermission of X.W.ʹs asylum application and properly applied de novo review

when considering whether he had sustained his burden of proof with respect to

his withholding of removal claim. We have rejected attempts to frame

disagreements over factfinding as constitutional claims or legal questions. See,

e.g., Barco‐Sandoval v. Gonzales,

(2d Cir. 2008). Inasmuch as his

petition does not raise a constitutional claim or question of law, we lack

jurisdiction to review the BIAʹs pretermission of his asylum application. X.W.ʹs

petition for review with respect to his asylum claim is dismissed.

B. Withholding of Removal

X.W. does not challenge on appeal the BIAʹs denial of his application

for CAT relief, so it is deemed waived. X.W.ʹs only remaining claim is for

withholding of removal.

At the outset, X.W. challenges the IJʹs adverse credibility finding.

However, ʺ[t]o preserve a claim, we require petitioner to raise issues to the BIA to

26 preserve them for judicial review.ʺ Foster v. INS,

(2d Cir. 2004) (per

curiam) (internal quotation marks, citation, and brackets omitted). This issue

exhaustion requirement is mandatory. Where, as here, ʺthe government points

out . . . that an issue . . . was not properly raised below, [we] must decline to

consider that issueʺ absent extraordinary circumstances. Lin Zhong v. U.S. Depʹt of

Justice,

, 107 n.1 (2d Cir. 2007).

X.W. failed to raise the credibility issue to the BIA, and he is thus

precluded from challenging the IJʹs credibility determination for the first time in

his petition in this Court.5 And while we decline to consider the credibility issue

ourselves and in the first instance, Theodoropoulos v. INS,

(2d Cir.

2004), it is of no moment: The BIA presumed X.W.ʹs credibility in conducting its

de novo review.

Our task is to determine whether there is substantial evidence

supporting the BIAʹs determination that X.W. failed to establish his eligibility for

withholding of removal. We emphasize that Y.C. and X.W. are not similarly

situated, inasmuch as X.W., having forfeited his asylum claim, must meet the

5 The exhaustion bar is equally applicable to arguments that the IJ engaged in improper conduct and distorted the record, which X.W. raises for the first time here.

27 stricter standard for withholding of removal: that it is more likely than not that his

life or freedom will be threatened because of his pro‐democracy activities if he is

returned to China. See

(b)(2). X.W. has failed to sustain his

burden.

There is some evidence to suggest that Chinese authorities could

become aware of his pro‐democracy activities in the United States. X.W. has a

member page on the CDP website that identifies him by name, displays his head

shot, and includes links to photographs of him participating in protests and

stuffing envelopes. Again, the State Department reports that Chinese authorities

monitor the Internet and, as the government is openly hostile to the CDP, there is

reason to believe the CDP website in New York might be of interest to it.

Nevertheless, it requires a chain of inferences we are unprepared to draw to

conclude on the basis of X.W.ʹs Internet presence that the Chinese government is

aware or likely to become aware of his pro‐democracy activities. Cf. Yue Wen

Zhong, 482 F. Appʹx at 630 (claim that Chinese authorities would discover U.S.

CDP memberʹs anti‐Communist articles on the Internet was ʺspeculativeʺ).

Moreover, X.W. had a relatively low level of involvement in the CDP, and the

letter from his parents made no mention of any visits from the police or warnings

28 that X.W. would be retaliated against if he continued his membership in the CDP.

Accordingly, we are not convinced that the record compels a conclusion that the

Chinese government is likely to be aware of X.W.ʹs CDP activities. Cf. Shan Ze

Zhang v. Holder, 443 F. Appʹx 609, 611 (2d Cir. 2011) (summary order) (ʺAlthough

Zhang argues that because his [pro‐democracy articles published on the CDP

website] may be obtained via the Internet he has sustained his burden of showing

a reasonable possibility that the Chinese government will become aware of his

political activities, we are not persuaded that the record compels this

conclusion.ʺ).

Even if the Chinese authorities are aware or likely to become aware of

X.W.ʹs pro‐democracy activities, it does not follow that it is ʺmore likely than notʺ

that X.W.ʹs life or freedom will be threatened if he is returned to China. X.W.

relies on the example of Huang Xiaoqin, a ʺvice‐directorʺ of the CDP in China.

Huang Xiaoqin was convicted of subverting state power in 2003 and sentenced to

serve five years in prison after he distributed about 2,000 CDP propaganda flyers

at Chinese universities and left a bag of flyers on a train in China. Because X.W.

mailed CDP flyers to Chinese university students, he argues that he will suffer the

same fate as Huang Xiaoqin if returned to China.

29 We cannot extract from this single example a clear probability that

X.W. will be persecuted if returned to China. As in Y.C.ʹs case, there is no

evidence suggesting that Chinese authorities view overseas pro‐democracy

activities in the same manner as domestic participation in pro‐democracy

organizations. And, as the agency concluded, it is difficult to compare X.W. and

Huang Xiaoqinʹs relative roles in the CDP without understanding the full extent

of the latterʹs activities in China. Cf. Shan Ze Zhang, 443 F. Appʹx at 611 (ʺ[T]he

agency reasonably found that Zhang did not demonstrate that the Chinese

government targeted individuals upon their return to China for having

participated in CDP activities in the United States, as the evidence he presented

either pertained to individuals who engaged in activities within China or did not

show the reason for the individualʹs alleged arrest.ʺ); Yue Wen Zhong, 482 F. Appʹx

at 630 (ʺAlthough several articles in the record reported interrogations and

detentions of prominent Chinese nationals who published hundreds of

anti‐Communist articles on overseas websites, the record does not compel the

conclusion that Zhong, who published only four articles from the United States,

would be subjected to similar treatment if he returned to China.ʺ). Consequently,

30 the agency reasonably determined that X.W. failed to meet the heightened

standard to establish his eligibility for withholding of removal.

IV. A Final Observation

In recent years, this Court has faced a number of petitions from

Chinese nationals who seek asylum or related relief on the ground that they have

taken up the pro‐democracy cause since their arrival in the United States. See, e.g.,

Haolin Li v. Holder, 491 F. Appʹx 250, 252 (2d Cir. 2012) (summary order) (the BIA

ʺreasonably found that Li had failed to establish a well‐founded fear of

persecution because there was no indication that Chinese authorities were aware

that Li had previously distributed CDP literature in China or that they were aware

of his activities in the United States, because his activities were not published on

the internet and he was difficult to identify in picturesʺ); Wen Hui Chen v. Holder,

482 F. Appʹx 654, 656 (2d Cir. 2012) (summary order) (denying motion to reopen

asylum petition on the basis of Chinese alienʹs later membership in the CDP in the

United States). Such cases present this Court with a complex set of

considerations, requiring a careful parsing of the legal and factual issues at stake.

As this Court observed in a recent decision relating to Chinaʹs

population policy, Chinese asylum cases tend to be

31 complicated by both political and practical concerns. As to the first, few societies have valued individual liberty as strongly as our own or erected such high legal barriers to government intrusion on personal freedom. Thus, it is not surprising that other governmentsʹ restraints on personal autonomy strike us as oppressive. Which of these restraints rise to the level of persecution warranting asylum is not always easy to determine. As for practical considerations, Chinaʹs population control policy applies in a country of more than 1.3 billion people. The persons opposed to the policy, i.e., the potential applicants for asylum in the United States from that policy, could therefore easily number in the millions. Further complicating the issue is the ease with which opposition to the stateʹs population policy might be invoked to support asylum claims by large numbers of Chinese nationals whose real reason for seeking entry into the United States is the historic motivation for generations of immigrants: the search for better economic opportunities.

Mei Fun Wong v. Holder,

, 68‐69 (2d Cir. 2011) (citation omitted). This

observation applies with at least equal force to cases that implicate Chinaʹs

policies on religious or political freedoms.

What makes cases like this one particularly thorny is that pro‐

democracy claims may be especially easy to manufacture. Any Chinese alien who

writes something supportive of democracy (or pays for such writing to be

published in his or her name) and publishes it in print or on the Internet may in

some cases do so principally in order to assert that he or she fears persecution.

32 And, because Internet postings in particular may become accessible anywhere, the

applicant can argue that the Chinese government is aware or likely to become

aware of his or her pro‐democracy stance.

The petitions we review today reflect the especially strong need in

this genre of cases for careful balancing of legal factors – the alienʹs credibility, the

likelihood that the Chinese government is aware of the applicantʹs pro‐democracy

beliefs, evidence suggesting that the alien would be targeted because of those

beliefs if returned to China, and such – as well as the political and practical

concerns to which we have adverted.

CONCLUSION

For the foregoing reasons, Y.C.ʹs petition for review is denied in its

entirety. X.W.ʹs petition for review is dismissed with respect to his asylum claim,

and denied with respect to his withholding of removal claim.

33