Filed: Oct. 01, 2014
Latest Update: Mar. 02, 2020
Summary: 13-3678 Lu v. Holder BIA Cheng, IJ A200 182 590 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 NOTATIO
Summary: 13-3678 Lu v. Holder BIA Cheng, IJ A200 182 590 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..
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13-3678
Lu v. Holder
BIA
Cheng, IJ
A200 182 590
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 A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 1st day of October, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
JICHENG LU,
Petitioner,
v. 13-3678
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Zhong Yue Zhang, Flushing, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Linda S. Wernery, Assistant
Director; Janice K. Redfern, Senior
Litigation Counsel, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Jicheng Lu, a native and citizen of the People’s
Republic of China, seeks review of a September 10, 2013
decision of the BIA affirming the March 20, 2012 decision of
an Immigration Judge (“IJ”) which denied his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Jicheng Lu, No.
A200 182 590 (B.I.A. Sept. 10, 2013), aff’g No. A200 182 590
(Immig. Ct. N.Y.C. Mar. 20, 2012). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have
considered the IJ’s decision as modified by the BIA’s
decision, and assume Lu’s credibility. See Xue Hong Yang v.
U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
The applicable standards of review are well established.
See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562
F.3d 510, 513 (2d Cir. 2009).
2
To establish eligibility, an asylum applicant must show
that he has suffered past persecution, or has a well-founded
fear of future persecution. 8 U.S.C. § 1101(a)(42).
Because Lu did not allege past persecution, he had the
burden of establishing a subjective fear of future
persecution that was objectively reasonable, i.e., one that
has solid support in the record and is not speculative.
Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir.
2005) (holding that, absent “solid support in the record,”
fear of future harm is “speculative at best”). To meet this
burden, “an alien must make some showing that authorities in
his country of nationality are either aware of his
activities or likely to become aware of his activities.”
Hongsheng Leng v. Mukasey,
528 F.3d 135, 143 (2d Cir. 2008).
The agency reasonably found that Lu failed to establish
an objectively reasonable fear of future persecution. The
agency did not err in finding that Lu failed to show that
authorities in China are, or would likely become, aware of
his CDP activities in the United States. See id. at 143.
His testimony alone did not establish the Chinese
government’s awareness of his CDP activities because it
lacked specificity. See 8 U.S.C. § 1158(b)(1)(B)(ii); Jian
3
Xing Huang, 421 F.3d at 129. Lu’s protest demonstration
photographs on the CDP website did not provide names or
other identifying information, and he failed to provide
documentation or explanation that his articles published on
the CDP website had attracted the attention of the Chinese
government, or that the articles had otherwise been
published in China. See Y.C. v. Holder,
741 F.3d 324, 333-
34 (2d Cir. 2013).
Nor did the agency err in declining to credit a letter
from Lu’s wife stating that the police had visited their
home in China to investigate Lu’s CDP activities. See Xiao
Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
2006) (holding that the weight to be afforded to evidence
“lie[s] largely within the discretion of the IJ” (alteration
in original) (internal quotation marks omitted)). Lu’s
wife’s letter was unsworn and from an interested witness not
subject to cross examination. In re H–L–H & Z–Y–Z–, 25 I. &
N. Dec. 209, 215 (B.I.A. 2010) (giving diminished weight to
letters from friends and relatives where they were written
by interested witnesses not subject to cross examination),
rev’d on other grounds by Hui Lin Huang v. Holder,
677 F.3d
130 (2d Cir. 2012); see also
Y.C., 741 F.3d at 334
4
(deferring to the agency when it declined to give weight to
a letter from the applicant’s family member who was an
“interested witness”).
In addition to a lack of personalized evidence, the
country conditions evidence did not support Lu’s claimed
fear. Lu’s evidence was that leaders of the CDP prominent
outside of China and political dissidents within China have
been imprisoned and persecuted. Lu did not demonstrate that
low-level activists within the United States, similar to
himself, have been persecuted by the Chinese government upon
their return to China. Without evidence that similarly
situated people have been persecuted upon their return to
China, it would be pure speculation to assume that Lu will
be persecuted for his activities. Cf. Y.C., 741 F.3d at
333-34. Given the lack of personalized or country
conditions evidence, the agency did not err in finding that
Lu failed to establish a well-founded fear of persecution.
See Jian Xing
Huang, 421 F.3d at 129.
Because Lu did not meet his burden for asylum, he
cannot meet the higher burden for withholding of removal and
CAT relief. Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir.
2010).
5
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, Lu’s pending
motion for a stay of removal in this petition is DISMISSED
as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6
