17-120 Sun v. Whitaker BIA Loprest, IJ A205 618 941

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 TO 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 4th day of January, two thousand nineteen. 5 6 PRESENT: 7 JON. O. NEWMAN, 8 REENA RAGGI, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 MENG YUAN SUN, 14 Petitioner, 15 16 v. 17-120 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Meer M. M. Rahman, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting 26 Assistant Attorney General; 27 Nancy E. Friedman, Senior 28 Litigation Counsel; Sharon M. 29 Clay, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DISMISSED IN PART and DENIED IN PART.

9 Petitioner Meng Yuan Sun, a native and citizen of the

10 People’s Republic of China, seeks review of a BIA decision

11 affirming the denial of Sun’s application for asylum,

12 withholding of removal, and relief under the Convention

13 Against Torture (“CAT”). In re Meng Yuan Sun, No. A205 618

14 941 (B.I.A. Dec. 19, 2016), aff’g No. A205 618 941 (Immig.

15 Ct. N.Y. City Mar. 11, 2016). We assume the parties’

16 familiarity with the underlying facts and procedural history

17 in this case.

18 Under the circumstances of this case, we have reviewed

19 the decisions of both the Immigration Judge (“IJ”) and the

20 BIA “for the sake of completeness,” Wangchuck v. Dep’t of

21 Homeland Sec.,

(2d Cir. 2006), applying

22 well established standards of review, see

1252(b)(4)(B); Yanqin Weng v. Holder,

(2d

24 Cir. 2009).

2 1 I. Timeliness of the Asylum Application

2 The agency denied Sun’s October 2012 asylum application

3 as untimely, finding that it was filed more than a year

4 after his 2008 arrival in the United States, and not within

5 a “reasonable period” following Sun’s January 2012 “changed

6 circumstances.” See

(a)(2)(D);

1208.4(4). In January 2012, Sun stopped working in his

8 field of study, causing his legal status to expire. See 8

9

(f)(10). Separately, but about the same time,

10 Sun began attending church and converted to Christianity.

11 The agency concluded that Sun was unreasonable in delaying

12 to file his application 10 months after his changed

13 circumstances.

14 Our jurisdiction to review the agency’s determination

15 of untimeliness is limited to “constitutional claims or

16 questions of law." See

(a)(2)(D). Sun’s

17 petition raises neither.

18 Instead, Sun challenges the agency’s factual findings,

19 arguing that his legal status continued through July 2012,

20 and that he converted to Christianity only in August 2012,

21 making his asylum application in October timely. This

22 argument “merely quarrels over the correctness of the

3 1 [agency’s] factual findings or justification for the

2 discretionary choices,” which we lack jurisdiction to

3 review. Xiao Ji Chen v. U.S. Dep’t of Justice,

(2d Cir. 2006). Because Sun has identified no

5 constitutional or legal error, we dismiss the petition as

6 it relates to asylum application.

7 II. Merits

8 Reviewing the agency’s factual findings for “substantial

9 evidence” and its “conclusions of law” de novo, see Niang v.

10 Holder,

(2d Cir. 2014), we deny the

11 remainder of Sun’s petition, identifying no error in the

12 agency’s determination that Sun failed to demonstrate

13 eligibility for asylum, and, therefore, necessarily failed to

14 meet the higher burden for withholding of removal and CAT

15 relief. See Y.C. v. Holder,

(2d Cir. 2013).

16 Asylum eligibility can be established by a well-founded

17 fear of persecution, which is a “subjective fear that is

18 objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552

(2d Cir. 2009) (internal quotation marks

20 omitted); see

(a)(42); 8 C.F.R.

21 § 1208.13(b)(2); see also Y.C.,

(“For an

22 asylum claim, the applicant must show a reasonable

4 1 possibility of future persecution.” (internal quotation

2 marks omitted)). An applicant can make that showing in two

3 ways: (1) by demonstrating that he “‘would be singled out

4 individually for persecution’ if returned,” or (2) by

5 proving the existence of a “‘pattern or practice in

6 [the] . . . country of nationality . . . of persecution of

7 a group of persons similarly situated to the applicant’ and

8 establishing his or her ‘own inclusion in, and

9 identification with, such group.’” Y.C.,

10 (quoting

(b)(2)(iii)). “[I]n order to

11 establish eligibility for relief based exclusively on

12 activities undertaken after . . . arrival in the United

13 States, an alien must make some showing that authorities in

14 his country of nationality are (1) aware of his activities

15 or (2) likely to become aware of his activities.” Hongsheng

16 Leng v. Mukasey,

(2d Cir. 2008).

17 Here, substantial evidence supports the agency’s

18 conclusion that Sun failed to show a reasonable possibility

19 that he would be singled out for persecution. See id.; Jian

20 Xing Huang v. U.S. INS,

(2d Cir. 2005) (“In

21 the absence of solid support in the record,” a fear of

22 persecution is not well founded and “is speculative at

5 1 best.”). Sun’s only evidence that Chinese authorities were

2 aware of his religious activities was a letter from his

3 mother, an interested witness unavailable for cross

4 examination. The agency acted within its discretion in

5 declining to credit this evidence. See Y.C.,

6 (deferring to agency’s determination that letter from

7 relative in China—stating that petitioner had been visited by

8 police who were aware of applicant’s pro-democracy activities

9 in the United States—was entitled to limited weight because

10 it was unsworn and submitted by an interested witness).

11 Moreover, while Sun provided certain evidence about his

12 proselytizing activities (which the agency, in any event, did

13 not credit) he does not challenge the IJ’s finding, supported

14 by country-conditions evidence, that Chinese authorities

15 focus their efforts on pastors or leaders of house churches,

16 not individual worshipers. See Xiao Ji Chen,

17 (weight accorded to an applicant’s evidence “lie[s] largely

18 within the discretion of the IJ” (internal quotation marks

19 omitted)).

20 Further, substantial evidence also supports the agency’s

21 determination that Sun failed to establish a pattern or

22 practice of persecuting underground Christians in China. See

6 1 Jian Xing Huang,

. To establish such a pattern

2 or practice, an applicant must demonstrate that the harm to

3 that group is “systemic or pervasive.” In re A-M-, 23 I. &

4 N. Dec. 737, 741 (B.I.A. 2005); see Mufied v. Mukasey, 508

(2d Cir. 2007). The agency properly considered

6 the country conditions evidence, see Xiao Ji Chen,

at 342, and reasonably concluded that there was not systemic

8 or pervasive persecution, observing that tens of millions of

9 Christians practice this faith in China without apparent

10 interference.

11 Accordingly, we identify no error in the agency’s

12 decision to deny Sun asylum, withholding of removal, or CAT

13 relief.

14 For the foregoing reasons, the petition for review is

15 DISMISSED IN PART and DENIED IN REMAINING PART. As we have

16 completed our review, any stay of removal that the Court

17 previously granted in this petition is VACATED, and any

18 pending motion for a stay of removal in this petition is

19 DISMISSED as moot. Any pending request for oral argument in

20 this petition is DENIED in accordance with Federal Rule of

21

7 1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2 34.1(b).

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe 5 Clerk of Court

8