17-2215 Chen v. Barr BIA Hom, IJ A206 103 550 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 15th day of April, two thousand nineteen. 5 6 PRESENT: 7 ROBERT D. SACK, 8 PETER W. HALL, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 WU XIN CHEN, AKA XIN CHEN WU, 14 Petitioner, 15 16 v. 17-2215 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Yee Ling Poon; Deborah 24 Niedermeyer, Law Office of Yee 25 Ling Poon, LLC, New York, NY. 26 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Greg D. Mack, 29 Senior Litigation Counsel; 1 Virginia L. Gordon, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a

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

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

10 is DENIED.

11 Petitioner Wu Xin Chen, a native and citizen of the

12 People’s Republic of China, seeks review of a June 22, 2017,

13 decision of the BIA affirming a December 1, 2016, decision of

14 an Immigration Judge (“IJ”) denying Chen’s application for

15 asylum, withholding of removal, and relief under the

16 Convention Against Torture (“CAT”). In re Wu Xin Chen, No.

17 A 206 103 550 (B.I.A. June 22, 2017), aff’g No. A 206 103 550

18 (Immig. Ct. N.Y. City Dec. 1, 2016). We assume the parties’

19 familiarity with the underlying facts and procedural history

20 in this case.

21 We have reviewed the IJ’s decision as modified and

22 supplemented by the BIA. Wala v. Mukasey,

, 105

23 (2d Cir. 2007). Because the BIA assumed credibility, the

24 adverse credibility determination is not before us. See Yan 2 1 Chen v. Gonzales,

(2d Cir. 2005). The

2 applicable standards of review are well established. See

3

(b)(4)(B); Chuilu Liu v. Holder,

,

4 196 (2d Cir. 2009); Yanqin Weng v. Holder,

, 513

5 (2d Cir. 2009).

6 Ineffective Assistance of Counsel

7 The BIA did not err in rejecting Chen’s allegations of

8 ineffective assistance of counsel for failure to comply with

9 Matter of Lozada,

(BIA 1998). Lozada

10 requires an alien to file an affidavit detailing his agreement

11 with former counsel and submit proof that he notified former

12 counsel and the proper disciplinary authority of his

13 allegations.

. We require

14 “substantial compliance,” but not “slavish adherence to the

15 requirements.” Yi Long Yang v. Gonzales,

, 143-

16 44 (2d Cir. 2007). Failure to comply substantially with the

17 Lozada requirements constitutes forfeiture of an ineffective

18 assistance claim. See Jian Yun Zheng v. U.S. Dep’t of

19 Justice,

(2d Cir. 2005). Substantial

20 compliance is required “to deter meritless claims and to

21 provide a basis for determining whether counsel’s assistance 3 1 was in fact ineffective.” Twum v. INS,

(2d

2 Cir. 2005).

3 Chen contends that his prior counsel was ineffective for

4 failing to explain to the IJ why documents were untimely

5 filed; to file a motion to extend the time for filing

6 evidence; and to timely file country conditions evidence.1

7 As to that last claim, he argues that he is exempt from

8 complying with Lozada because the ineffectiveness was clear

9 on the face of the record. Chen’s former counsel admitted

10 fault for the untimely submission of country conditions

11 evidence. Even if Chen were not bound by Lozada, however,

12 he cannot show the prejudice needed to state an ineffective

13 assistance claim because the IJ considered evidence of

14 country conditions notwithstanding Chen’s counsel’s failure

15 to file it on time. See Rashid v. Mukasey,

, 131

1 We decline to consider the remaining ineffective assistance claims regarding the translation and the IJ’s questioning because they were not exhausted before the BIA. See Lin Zhong v. U.S. Dep’t of Justice,

(2d Cir. 2007) (describing issue exhaustion as mandatory); Arango- Aradondo v. INS,

(2d Cir. 1994) (holding that petitioner must first raise ineffective assistance of counsel claim with the BIA). 4 1 (2d Cir. 2008) (requiring showing of prejudice to prevail on

2 an ineffective assistance claim).

3 As to the first two claims, Chen relies on Yi Long Yang

4 to argue that he is exempt from Lozada’s requirements. But

5 his reliance is misplaced inasmuch as Lozada was inapplicable

6 in that case because counsel had already been disbarred. See

7 Yi Long Yang,

. Chen makes no such allegation

8 here. Chen was therefore required to comply with Lozada as

9 to these allegations. See Jian Yun Zheng,

-

10 47.

11 Corroboration

12 “The testimony of the applicant may be sufficient to

13 sustain the applicant’s burden without corroboration, but

14 only if the applicant satisfies the trier of fact that the

15 applicant’s testimony is credible, is persuasive, and refers

16 to specific facts sufficient to demonstrate that the

17 applicant is a refugee.”

(b)(1)(B)(ii); see

18 also Chuilu Liu,

. “In determining whether

19 the applicant has met [his] burden, the trier of fact may

20 weigh the credible testimony along with other evidence of

21 record. Where the trier of fact determines that the 5 1 applicant should provide evidence that corroborates otherwise

2 credible testimony, such evidence must be provided unless the

3 applicant does not have the evidence and cannot reasonably

4 obtain the evidence.”

(b)(1)(B)(ii).

5 It was reasonable for the IJ to require evidence to

6 corroborate Chen’s testimony–which was offered to establish

7 that he had been persecuted while living in China-because

8 Chen’s testimony was vague and lacking in detail. See

9

(b)(1)(B)(i); see also Chuilu Liu,

196-97. And the agency properly identified the missing

11 evidence. See Chuilu Liu,

. The IJ noted

12 that Chen failed to corroborate his testimony offered to

13 establish past persecution. Chen testified that he was

14 arrested for distributing church flyers while in China. But

15 Chen did not provide timely filed affidavits from his father,

16 mother, or the other church member whom he was allegedly

17 arrested with. Nor did Chen corroborate his testimony that

18 when he was in China, his parents were forced to pay a bribe,

19 that he was charged with being a member of a cult, or that

20 the police came to his home looking for him after he left for

21 the United States. Chen did not establish that corroborating 6 1 evidence from his family and fellow arrestee was unavailable,

2 and his untimely submission of a letter from his father

3 indicates that he could have obtained more detailed

4 statements at an earlier date. See

; 8 U.S.C.

5 § 1252(b)(4) (“No court shall reverse a determination made by

6 a trier of fact with respect to the availability of

7 corroborating evidence . . . unless . . . a reasonable trier

8 of fact is compelled to conclude that such corroborating

9 evidence is unavailable.”). Chen asserted that a letter from

10 the church member he was arrested with and evidence that he

11 was charged with being part of a cult and that his parents

12 had the funds to pay a bribe, was not available, but he did

13 not explain why. In sum, given Chen’s vague testimony and

14 the lack of reliable corroboration, the agency did not err in

15 finding that Chen failed to satisfy his burden of proof as to

16 his claim of past persecution. See 8 U.S.C.

17 § 1158(b)(1)(B)(ii).

18 Well-Founded Fear of Future Persecution

19 Absent past persecution, an alien may establish

20 eligibility for asylum by demonstrating a well-founded fear

21 of future persecution,

(b)(2), which must 7 1 be both subjectively credible and objectively reasonable,

2 Ramsameachire v. Ashcroft,

(2d Cir. 2004).

3 To demonstrate a well-founded fear, an applicant must show

4 either a reasonable possibility that he would be “singled

5 out” for persecution or that the country of removal has a

6 “pattern or practice” of persecuting individuals “similarly

7 situated” to him.

(b)(2)(iii).

8 Furthermore, where a claim is based on activities undertaken

9 solely in the United States, “an alien must make some showing

10 that authorities in his country of nationality are either

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

12 activities.” Hongsheng Leng v. Mukasey,

, 143

13 (2d Cir. 2008).

14 The IJ did not err in finding that Chen’s practice of

15 Christianity in the United States did not establish a well-

16 founded fear of persecution. Chen did not show a pattern or

17 practice of persecution of similarly situated individuals or

18 that the Chinese government was or would likely become aware

19 of his practice of Christianity in the United States. The

20 2015 State Department International Religious Freedom Report

21 states that, “[i]n some parts of the country . . . local 8 1 authorities allowed or at least did not interfere with the

2 activities of unregistered religious groups,” and as the IJ

3 noted, the report does not reflect persecution in Chen’s home

4 province. Where treatment of Christians varies by region,

5 the agency does not err by requiring evidence specific to an

6 applicant’s home region. See Jian Hui Shao v. Mukasey, 546

(2d Cir. 2008) (finding that the BIA

8 does not err in requiring localized evidence of persecution

9 when the record reflected wide variances in how policies are

10 understood and enforced throughout China). Furthermore, the

11 IJ reasonably concluded that although a State Department

12 report shows some arrest and mistreatment of members of

13 unregistered churches, Chinese authorities primarily target

14 church leaders. Accordingly, the agency did not err in

15 concluding that Chen failed to demonstrate systemic or

16 pervasive persecution of similarly situated Christians as

17 needed to demonstrate a pattern and practice of persecution

18 in China. See

(b)(2)(iii); see also

19 Santoso v. Holder,

, 112 & n.1 (2d Cir. 2009)

20 (denying petition where agency considered background

21 materials and rejected pattern or practice claim); In re A- 9 1 M-,

(BIA 2005) (recognizing that a

2 pattern or practice of persecution is the “systemic or

3 pervasive” persecution of a group).

4 Furthermore, the agency did not err in finding that Chen

5 failed to establish that the Chinese government was, or would

6 likely become aware of his practice of Christianity. There

7 was no evidence that the Chinese government was aware of his

8 practice of Christianity in the United States. And it is

9 also unlikely that the Chinese government would become aware

10 of his practice once he reaches Chinese soil. There are tens

11 of millions of unregistered practitioners of Christianity in

12 China, and Chen did not establish that there was significant

13 persecution of Christians in his home province. See Jian Hui

14 Shao, 546 F.3d at 149-50, 165-66; Hongsheng Leng,

143.

16 For these reasons, the agency did not err in finding that

17 Chen failed to satisfy his burden of establishing past

18 persecution or an objectively reasonable fear of future

19 persecution on account of his religion. See Chuilu Liu, 575

20 F.3d at 196-98; see also Hongsheng Leng,

.

21 That finding is dispositive of asylum, withholding of 10 1 removal, and CAT relief because all three claims were based

2 on the same factual predicate. See Lecaj v. Holder,

(2d Cir. 2010).

4 For the foregoing reasons, the petition for review is

5 DENIED. As we have completed our review, any stay of removal

6 that the Court previously granted in this petition is VACATED,

7 and any pending motion for a stay of removal in this petition

8 is DISMISSED as moot. Any pending request for oral argument

9 in this petition is DENIED in accordance with Federal Rule of

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

11 34.1(b).

12 13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk of Court 15

11