Y.C. v. HOLDER, X.W. v. HOLDER
11‐2749‐ag, 11‐3217‐ag
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Decided: December 18, 2013
August Term, 2012 (Argued: April 29, 2013)
Petitioner,
‐ v ‐
Eric H. Holder, Jr., United States Attorney General,
Respondent.
X.W.
Petitioner,
‐ v ‐
Eric H. Holder, Jr., United States Attorney General,
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 petitioners’ applications for asylum, withholding of removal, and protection under the Convention Against Torture. Petitioners, both natives and citizens of the People‘s 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 petitioners’ 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.‘s petition for review in its entirety, and deny in part and dismiss in part X.W.‘s petition for review.
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.‘s 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
BACKGROUND
Y.C.
Y.C., a native and citizen of the People‘s 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
In an oral decision, IJ Hom denied Y.C.‘s application for asylum, withholding of removal, and CAT relief. The IJ found that any harassment Y.C.
Y.C. appealed to the BIA, which, in 2006, affirmed the IJ‘s decision without opinion. In February 2008, this Court granted Y.C.‘s first petition for review and remanded the case to the BIA. We found no error in the IJ‘s denial of Y.C.‘s past persecution claim, but concluded that the IJ failed to address Y.C.‘s claim that she feared future persecution on the basis of the Beijing Spring article. On remand, the BIA vacated its prior decision affirming the IJ‘s decision and remanded the case to the IJ to consider Y.C.‘s 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 organization‘s departments, and that she published articles in Beijing Spring; and (2) a letter dated January 28, 2009, from her husband stating that local public
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 husband‘s 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
In March 2009, the IJ again denied Y.C.‘s application for asylum, withholding of removal, and CAT relief. The IJ gave little evidentiary weight to the letters from the CAD and Y.C.‘s 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
The BIA further concluded that, even if the Chinese government were aware of Y.C.‘s 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.
X.W., a native and citizen of the People‘s 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 government‘s denial of disaster assistance after a typhoon destroyed his family‘s 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 CDP‘s 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.
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 government‘s 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.
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
Having found X.W.‘s 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.‘s pro‐democracy activities because X.W. had only a low‐level role in the CDP, and because X.W.‘s 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.‘s return.
Nonetheless assuming that X.W.‘s 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.‘s 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 BIA‘s decisions.
I. Legal Standards
A. Standard of Review
ʺWhen the BIA briefly affirms the decision of an IJ and adopts the IJ‘s reasoning in doing so, we review the IJ‘s and the BIA‘s decisions together.ʺ Jigme Wangchuck v. Dep‘t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006) (internal quotation marks and brackets omitted). When the BIA does not expressly adopt the IJ‘s decision, but ʺclosely tracks the IJ‘s reasoning,ʺ we also may review both decisions. Id. We review the BIA‘s ʺlegal conclusions de novo, and its factual findings, including adverse credibility determinations, under the substantial evidence standard.ʺ Shi Jie Ge v. Holder, 588 F.3d 90, 93‐94 (2d Cir. 2009) (citation omitted). We generally defer to the agency‘s evaluation of the weight to be afforded an applicant‘s documentary evidence. Xiao Ji Chen v. U.S. Dep‘t of Justice, 471 F.3d 315, 342 (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
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.
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 applicant‘s] race, religion, nationality, membership in a particular social group, or political opinion.ʺ 8 C.F.R. § 1208.16(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, 528 F.3d at 143.
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 8 C.F.R. § 1208.16(c)(2).
In an apparent misreading of our decision in Shi Jie Ge v. Holder, 588 F.3d 90 (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 Id. at 96. That statement was not a suggestion that the Chinese government‘s 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. Dep‘t of State, Country Reports on Human Rights Practices: China (includes Tibet, Hong Kong, and Macau), at 5 (Mar. 11, 2008) (characterizing
The apparent error in the BIA‘s analysis, however, was harmless. The agency went on to conduct a de novo review of Y.C.‘s fear‐of‐future‐persecution claim without relying on the purported banned organization ʺrequirement.ʺ Substantial evidence in the record supports the agency‘s 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
Even if Chinese authorities were aware of her pro-democracy activities, moreover, nothing in the record compels a finding that Y.C. would be
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. Dep‘t of State, China:
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 agency‘s denial of Y.C.‘s withholding of removal and CAT claims.
III. X.W.
A. Timeliness of X.W.‘s Asylum Application
An asylum application must be “filed within 1 year after the date of the alien‘s arrival in the United States,”
X.W.‘s 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.‘s CDP activities constituted “changed circumstances,” 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.‘s 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, 609 F.3d 62, 67 (2d Cir. 2010) (per curiam) (“[W]hen the BIA engages in factfinding in contravention of
B. Withholding of Removal
X.W. does not challenge on appeal the BIA‘s denial of his application for CAT relief, so it is deemed waived. X.W.‘s only remaining claim is for withholding of removal.
At the outset, X.W. challenges the IJ‘s adverse credibility finding. However, “[t]o preserve a claim, we require petitioner to raise issues to the BIA to
X.W. failed to raise the credibility issue to the BIA, and he is thus precluded from challenging the IJ‘s 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, 358 F.3d 162, 171 (2d Cir. 2004), it is of no moment: The BIA presumed X.W.‘s credibility in conducting its de novo review.
Our task is to determine whether there is substantial evidence supporting the BIA‘s 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
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.‘s Internet presence that the Chinese government is aware or likely to become aware of his pro-democracy activities. Cf. Yue Wen Zhong, 482 F. App‘x at 630 (claim that Chinese authorities would discover U.S. CDP member‘s anti-Communist articles on the Internet was “speculative“). 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
Even if the Chinese authorities are aware or likely to become aware of X.W.‘s pro-democracy activities, it does not follow that it is “more likely than not” that X.W.‘s life or freedom will be threatened if he is returned to China. X.W. relies on the example of Huang Xiaoqin, a “vice-director” 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.
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. App‘x 250, 252 (2d Cir. 2012) (summary order) (the BIA “reasonably 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 pictures“); Wen Hui Chen v. Holder, 482 F. App‘x 654, 656 (2d Cir. 2012) (summary order) (denying motion to reopen asylum petition on the basis of Chinese alien‘s 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 China‘s population policy, Chinese asylum cases tend to be
Mei Fun Wong v. Holder, 633 F.3d 64, 68-69 (2d Cir. 2011) (citation omitted). This observation applies with at least equal force to cases that implicate China‘s 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.
The petitions we review today reflect the especially strong need in this genre of cases for careful balancing of legal factors – the alien‘s credibility, the likelihood that the Chinese government is aware of the applicant‘s 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.‘s petition for review is denied in its entirety. X.W.‘s petition for review is dismissed with respect to his asylum claim, and denied with respect to his withholding of removal claim.