Filed: May 16, 2016
Latest Update: Mar. 02, 2020
Summary: 14-2544 Yan v. Lynch BIA Nelson, IJ A096 736 375 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 NOTATI
Summary: 14-2544 Yan v. Lynch BIA Nelson, IJ A096 736 375 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..
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14-2544
Yan v. Lynch
BIA
Nelson, IJ
A096 736 375
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.
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
16th day of May, two thousand sixteen.
PRESENT:
JOHN M. WALKER, JR.,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
YUGUO YAN,
Petitioner,
v. 14-2544
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Dehai Zhang, Esq., Flushing,
New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Ernesto
H. Molina, Jr., Assistant Director;
Dana M. Camilleri, Trial Attorney,
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.
Petitioner Yuguo Yan, a native and citizen of the People’s
Republic of China, seeks review of a July 10, 2014 decision of
the BIA affirming an August 6, 2013 decision of an Immigration
Judge (“IJ”) denying Yan’s application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Yuguo Yan, No. A096 736 375 (B.I.A. July 10,
2014), aff’g No. A096 736 375 (Immig. Ct. N.Y. City Aug. 6,
2013). Under the circumstances of this case, we review both
the IJ’s and the BIA’s opinions, see Wangchuck v. Dep’t of
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), applying well
established standards of review, see 8 U.S.C. § 1252(b)(4)(B);
Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
As an initial matter, although Yan challenges the denial
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of relief in “asylum-only” proceedings, as opposed to an actual
removal order, we nonetheless have jurisdiction under 8 U.S.C.
§ 1252(a)(1) because the denial of relief in these
circumstances is the functional equivalent of a removal order.
See Kanacevic v. INS, 448 F.3d 129, 134-35 (2d Cir. 2006).
Absent past persecution, an applicant may establish
eligibility for asylum by demonstrating a well-founded fear of
future persecution, see 8 C.F.R. § 1208.13(b)(2), which must
be both subjectively credible and objectively reasonable, see
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
To establish a well-founded fear, an applicant must show either
a reasonable possibility that he would be singled out for
persecution or that the country of removal has a pattern or
practice of persecuting individuals similarly situated to him.
See 8 C.F.R. § 1208.13(b)(2)(i),(iii). “[T]o establish a
well-founded fear of persecution in the absence of evidence of
past persecution,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).
Here, the agency was not compelled to find that Yan demonstrated
3
a well-founded fear of persecution on account of his religious
practice.
Yan’s sole support for his assertion that Chinese officials
are aware of his religious practice is an unsigned and unsworn
letter from a friend in China. The letter states that Yan’s
friend was arrested and, upon interrogation, informed officials
that Yan had sent him religious materials from the United
States. The agency reasonably gave little weight to this
unsworn letter because the author was not available for
cross-examination and did not provide any independent evidence
to corroborate his story, such as an arrest report. See Y.C.
v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring to
agency’s determination of weight to be afforded unsworn
letter). Accordingly, the agency was not compelled to conclude
that Yan satisfied his burden of demonstrating that officials
are aware of his religious practice such that there is a
reasonable possibility that they will single him out for
persecution. See Hongsheng
Leng, 528 F.3d at 142-43.
Moreover, the agency did not err in determining that Yan
failed to establish a pattern or practice of persecution of
similarly situated individuals such that officials are likely
4
to become aware of his religious practice and persecute him on
that account. See id. As the IJ found, the country conditions
evidence in the record established that between fifty and
seventy million Christians practice in unregistered churches
in China, and that, in some areas, such practice was tolerated
without interference. Thus, despite evidence of sporadic
arrests of religious practitioners, the agency did not err in
concluding that Yan failed to demonstrate “systemic or
pervasive” persecution of similarly situated Christians
sufficient to demonstrate a pattern or practice of persecution
in China. In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005)
(citation omitted); see also 8 C.F.R. § 1208.13(b)(2)(iii);
Santoso v. Holder,
580 F.3d 110, 112 & n.1 (2d Cir. 2009)
(denying petition where agency considered background materials
and rejected pattern or practice claim).
Accordingly, because the agency reasonably found that Yan
failed to demonstrate a well-founded fear of persecution, it
did not err in denying asylum, withholding of removal, and CAT
relief because all three claims were based on the same factual
predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
2006).
5
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6
