Filed: Oct. 27, 2015
Latest Update: Mar. 02, 2020
Summary: 14-2513 Qian v. Lynch BIA Nelson, IJ A088 530 534 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 NOTAT
Summary: 14-2513 Qian v. Lynch BIA Nelson, IJ A088 530 534 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..
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14-2513
Qian v. Lynch
BIA
Nelson, IJ
A088 530 534
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 27th day of October, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 GUIYUE QIAN,
14 Petitioner,
15
16 v. 14-2513
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Giacchino J. Russo, Flushing, New
24 York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Blair T.
28 O’Connor, Assistant Director; John
29 B. Holt, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioner Guiyue Qian, a native and citizen of People’s
10 Republic of China, seeks review of a June 18, 2014, decision
11 of the BIA affirming a September 11, 2012, decision of an
12 Immigration Judge (“IJ”) denying Qian’s application for asylum,
13 withholding of removal, and relief under the Convention Against
14 Torture (“CAT”). In re Guiyue Qian, No. A088 530 534 (B.I.A.
15 June 18, 2014), aff’g No. A088 530 534 (Immig. Ct. N.Y. City
16 Sept. 11, 2012). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 Under the circumstances of this case, we have reviewed the
19 IJ’s decision as modified by the BIA, i.e., minus the basis for
20 denying relief that the BIA did not consider (the IJ’s adverse
21 credibility determination). See Xue Hong Yang v. U.S. Dep’t
22 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
23 standards of review are well established. See 8 U.S.C.
2
1 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
2 Cir. 2009). Substantial evidence supports the agency’s
3 determination that Qian failed to establish a well-founded fear
4 of persecution on account of her involvement with the Chinese
5 Democracy Justice Party (“CDJP”) in the United States.
6 In order “to establish a well-founded fear of persecution
7 in the absence of any evidence of past persecution, an alien
8 must make some showing that authorities in his country of
9 nationality are either aware of h[er] activities or likely to
10 become aware of h[er] activities.” Hongsheng Leng v. Mukasey,
11
528 F.3d 135, 143 (2d Cir. 2008). “While consistent, detailed,
12 and credible testimony may be sufficient to carry the alien’s
13 burden, evidence corroborating h[er] story, or an explanation
14 for its absence, may be required where it would reasonably be
15 expected.” Diallo v. INS,
232 F.3d 279, 285 (2d Cir. 2000);
16 see also Chuilu Liu v. Holder,
575 F.3d 193, 196-97 (2d Cir.
17 2009).
18 The only evidence Qian proffered in support of her
19 contention that Chinese officials had discovered her CDJP
20 activities was her testimony that her daughter had informed her
21 over the telephone that officials had visited her on three
3
1 occasions and made threats related to Qian’s CDJP activities.
2 The agency did not err in finding that a letter from Qian’s
3 daughter corroborating this testimony was reasonably available
4 and expected under the circumstances. The agency was not
5 compelled to credit Qian’s explanation that her daughter did
6 not write a letter because she was being monitored by Chinese
7 government officials. Officials purportedly had asked Qian’s
8 daughter to relay their threats to Qian, and had not interfered
9 with their phone conversations or repeated the threats during
10 the three years preceding Qian’s hearing in 2012. See Chuilu
11 Liu, 575 F.3d at 196-97; see also Y.C. v. Holder,
741 F.3d 324,
12 334 (2d Cir. 2013) (deferring to agency’s decision regarding
13 the weight to afford evidence that officials were aware of
14 petitioner’s pro-democracy activities in the United States).
15 Accordingly, the agency was not compelled to conclude that Qian
16 established that Chinese authorities are aware of her CDJP
17 activities in the United States. See Chuilu
Liu, 575 F.3d at
18 198-99; see also Hongsheng
Leng, 528 F.3d at 143.
19 Nor did Qian’s evidence show that Chinese authorities are
20 likely to become aware of her political activities in the United
21 States. Qian submitted two articles and a summary of the
4
1 content of a video that she purportedly prepared and published
2 on the CDJP website. However, these submissions did not
3 indicate that they were published on the internet and she did
4 not otherwise corroborate their publication. She thus failed
5 to demonstrate that they were available online for Chinese
6 authorities to discover.
7 Even if Qian’s articles and video are available online, we
8 have rejected as unlikely the suggestion “that the Chinese
9 government is aware of every anti-Communist or pro-democracy
10 piece of commentary published online” and found speculative
11 claims that the Chinese government may discover a single article
12 or two published on the internet years later. Y.C., 741 F.3d
13 at 334 (citing Jian Xing Huang v. INS,
421 F.3d 125, 129 (2d
14 Cir. 2005) (“In the absence of solid support in the record .
15 . . , [an applicant’s] fear is speculative at best”)). Qian
16 testified that she no longer maintains contact with CDJP
17 members. She also has not published an article on the CDJP
18 website since 2009, and was last threatened by Chinese officials
19 that same year. Since that time, Qian has obtained a Chinese
20 passport, her daughter has attended a government-run college,
21 and they have communicated by phone without incident or threats.
5
1 Therefore, despite record evidence that the Chinese government
2 monitors and attempts to block pro-democracy activity on the
3 internet, the agency was not compelled to conclude that Chinese
4 officials are likely to discover Qian’s limited CDJP
5 activities, particularly given her lack of any CDJP involvement
6 for the three years preceding her hearing. See id. at 334,
7 336-37.
8 Because Qian failed to satisfy her burden to demonstrate
9 that authorities are aware or likely to become aware of her
10 political activities in the United States, substantial evidence
11 supports the agency’s determination that she failed to
12 establish a well-founded fear of persecution. See Hongsheng
13
Leng, 528 F.3d at 142. That finding was dispositive of asylum,
14 withholding of removal, and CAT relief because all three claims
15 were based on the same factual predicate. See Paul v. Gonzales,
16
444 F.3d 148, 156-57 (2d Cir. 2006). We do not consider Qian’s
17 unexhausted and waived arguments. See Lin Zhong v. U.S. Dep’t
18 of Justice,
480 F.3d 104, 119-20 (2d Cir. 2007); Yueqing Zhang
19 v. Gonzales,
426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
6
1 that the Court previously granted in this petition is VACATED,
2 and any pending motion for a stay of removal in this petition
3 is DISMISSED as moot. Any pending request for oral argument
4 in this petition is DENIED in accordance with Federal Rule of
5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
6 34.1(b).
7 FOR THE COURT:
8 Catherine O=Hagan Wolfe, Clerk
7
