19-10 Chen v. Garland BIA Hom, IJ A205 050 445 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 19th day of April, two thousand twenty-one. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 RICHARD C. WESLEY, 10 WILLIAM J. NARDINI, 11 Circuit Judges. 12 _____________________________________ 13 14 XIAOCUI CHEN, 15 Petitioner, 16 17 v. 19-10 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 1 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Gerald Karikari, Karikari & 25 Associates, P.C., New York, NY.

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 2 Attorney General; Cindy S. 3 Ferrier, Assistant Director; Micah 4 Engler, Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.

8

9 UPON DUE CONSIDERATION of this petition for review of a

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

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

12 is DENIED.

13 Petitioner Xiaocui Chen, a native and citizen of China,

14 seeks review of a December 19, 2018, decision of the BIA

15 affirming a November 8, 2017, decision of an Immigration Judge

16 (“IJ”) denying Chen’s application for asylum, withholding of

17 removal, and relief under the Convention Against Torture

18 (“CAT”). In re Xiaocui Chen, No. A 205 050 445 (B.I.A. Dec.

19 19, 2018), aff’g No. A 205 050 445 (Immig. Ct. N.Y. City Nov.

20 8, 2017). We assume the parties’ familiarity with the

21 underlying facts and procedural history.

22 Under the circumstances of this case, we have reviewed

23 the IJ’s decision as supplemented by the BIA. See Yan Chen

24 v. Gonzales,

(2d Cir. 2005). The applicable

25 standards of review are well established. See 8 U.S.C. 2 1 § 1252(b)(4)(B); Y.C. v. Holder,

(2d Cir.

2 2013).

3 The agency denied Chen’s asylum claim as time barred and

4 alternatively denied all relief on the merits. We find legal

5 error in the agency’s time bar ruling as neither the IJ nor

6 the BIA addressed Chen’s argument that her conversion to

7 Christianity while in the United States was a change in

8 circumstances that excused her untimely filing. See 8 U.S.C.

9 § 1158(a)(2)(B), (D); Mendez v. Holder,

(2d

10 Cir. 2009) (holding that an error of law may arise where facts

11 have “been totally overlooked”). However, we decline to

12 remand because, as discussed below, we find no error in the

13 agency’s alternative and dispositive conclusion that Chen

14 failed to establish a well-founded fear of persecution. See

15 Gurung v. Barr,

(2d Cir. 2019) (noting that

16 remand is not necessary “when the IJ articulates an

17 alternative and sufficient basis for her determination”).

18 Absent past persecution, an asylum applicant may

19 establish eligibility for relief by demonstrating a well-

20 founded fear of future persecution. See 8 C.F.R.

21 § 1208.13(b)(2); Ramsameachire v. Ashcroft,

, 178

3 1 (2d Cir. 2004). To do so, an applicant must show either a

2 reasonable possibility that she would be singled out for

3 persecution or that the country of removal has a “pattern or

4 practice” of persecuting similarly situated individuals. 8

(b)(2)(iii); see In re A-M-,

737, 741 (BIA 2005) (defining pattern or practice as “systemic

7 or pervasive” persecution). “[T]o establish eligibility for

8 relief based exclusively on activities undertaken after h[er]

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

10 that authorities in h[er] country of nationality are (1) aware

11 of h[er] activities or (2) likely to become aware of h[er]

12 activities.” Hongsheng Leng v. Mukasey,

, 138

13 (2d Cir. 2008).

14 The agency reasonably found that Chen failed to satisfy

15 her burden of proof because her evidence that Chinese police

16 were aware of her religious practice in the United States

17 consisted of vague testimony and letters from friends and

18 family members that were entitled to minimal weight, and her

19 country conditions evidence did not reflect a pattern or

20 practice of persecution of Christians in China. Chen alleged

21 that Chinese authorities were aware of her practice of

4 1 Christianity in the United States because she had discussed

2 Christianity on the telephone with people in China. But her

3 information lacked detail about who she spoke to or when, and

4 her supporting letters were authored by individuals not

5 available for cross-examination. See Jian Xing Huang v. U.S.

6 INS,

(2d Cir. 2005) (requiring “credible,

7 specific, and detailed evidence”); Y.C.,

, 334

8 (holding that “[w]e generally defer to the agency’s

9 evaluation of the weight to be afforded an applicant’s

10 documentary evidence” and upholding BIA’s decision not to

11 credit letter from applicant’s spouse). Moreover, the

12 country conditions evidence reported tens of millions of

13 Christians practicing in unregistered churches in China. The

14 agency did not err in determining that this evidence failed

15 to demonstrate a pattern or practice of persecution of

16 Christians in China based on the record in this case. See

17

(b)(2)(iii); Santoso v. Holder,

110, 112 & n.1 (2d Cir. 2009); Mufied v. Mukasey,

,

19 92–93 (2d Cir. 2007). Because the agency reasonably found

20 that Chen failed to demonstrate the well-founded fear of

21 persecution needed for asylum, she “necessarily” failed to

5 1 meet the higher standards for withholding of removal and CAT

2 relief. Lecaj v. Holder,

, 119–20 (2d Cir. 2010).

3 For the foregoing reasons, the petition for review is

4 DENIED. All pending motions and applications are DENIED and

5 stays VACATED.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court

6