     17-120
     Sun v. Whitaker
                                                                                  BIA
                                                                            Loprest, IJ
                                                                          A205 618 941


                            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 4th day of January, two thousand nineteen.
 5
 6   PRESENT:
 7            JON. O. NEWMAN,
 8            REENA RAGGI,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   MENG YUAN SUN,
14            Petitioner,
15
16                     v.                                        17-120
17                                                               NAC
18   MATTHEW G. WHITAKER, ACTING
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Meer M. M. Rahman, New York, NY.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting
26                                       Assistant Attorney General;
27                                       Nancy E. Friedman, Senior
28                                       Litigation Counsel; Sharon M.
29                                       Clay, Trial Attorney, Office of
1                                        Immigration Litigation, United
2                                        States Department of Justice,
3                                        Washington, DC.
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

8    is DISMISSED IN PART and DENIED IN PART.

9           Petitioner Meng Yuan Sun, a native and citizen of the

10   People’s Republic of China, seeks review of a BIA decision

11   affirming     the    denial   of    Sun’s        application         for    asylum,

12   withholding     of   removal,      and       relief    under    the    Convention

13   Against Torture (“CAT”).           In re Meng Yuan Sun, No. A205 618

14   941 (B.I.A. Dec. 19, 2016), aff’g No. A205 618 941 (Immig.

15   Ct.    N.Y.   City   Mar.   11,    2016).         We    assume       the   parties’

16   familiarity with the underlying facts and procedural history

17   in this case.

18          Under the circumstances of this case, we have reviewed

19   the decisions of both the Immigration Judge (“IJ”) and the

20   BIA “for the sake of completeness,”                    Wangchuck v. Dep’t of

21   Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), applying

22   well    established     standards        of     review,        see    8 U.S.C.    §

23   1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

24   Cir. 2009).


                                              2
1    I.   Timeliness of the Asylum Application

2         The agency denied Sun’s October 2012 asylum application

3    as untimely, finding that it was filed more than a year

4    after his 2008 arrival in the United States, and not within

5    a “reasonable period” following Sun’s January 2012 “changed

6    circumstances.” See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. §

7    1208.4(4). In January 2012, Sun stopped working in his

8    field of study, causing his legal status to expire. See 8

9    C.F.R. § 214.2(f)(10). Separately, but about the same time,

10   Sun began attending church and converted to Christianity.

11   The agency concluded that Sun was unreasonable in delaying

12   to file his application 10 months after his changed

13   circumstances.

14        Our jurisdiction to review the agency’s determination

15   of untimeliness is limited to “constitutional claims or

16   questions of law." See 8 U.S.C. § 1252(a)(2)(D). Sun’s

17   petition raises neither.

18        Instead, Sun challenges the agency’s factual findings,

19   arguing that his legal status continued through July 2012,

20   and that he converted to Christianity only in August 2012,

21   making his asylum application in October timely. This

22   argument “merely quarrels over the correctness of the


                                  3
1    [agency’s] factual findings or justification for the

2    discretionary choices,” which we lack jurisdiction to

3    review. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

4    315, 329 (2d Cir. 2006). Because Sun has identified no

5    constitutional or legal error, we dismiss the petition as

6    it relates to asylum application.

7    II. Merits

8        Reviewing the agency’s factual findings for “substantial

9    evidence” and its “conclusions of law” de novo, see Niang v.

10   Holder,    762   F.3d   251,   253    (2d   Cir.   2014),     we   deny   the

11   remainder of Sun’s petition, identifying no error in the

12   agency’s    determination      that       Sun   failed   to    demonstrate

13   eligibility for asylum, and, therefore, necessarily failed to

14   meet the higher burden for withholding of removal and CAT

15   relief. See Y.C. v. Holder, 741 F.3d 324, 335 (2d Cir. 2013).

16       Asylum eligibility can be established by a well-founded

17   fear of persecution, which is a “subjective fear that is

18   objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552

19   F.3d 277, 284 (2d Cir. 2009) (internal quotation marks

20   omitted); see 8 U.S.C. § 1101(a)(42); 8 C.F.R.

21   § 1208.13(b)(2); see also Y.C., 741 F.3d at 332 (“For an

22   asylum claim, the applicant must show a reasonable


                                           4
1    possibility of future persecution.” (internal quotation

2    marks omitted)). An applicant can make that showing in two

3    ways: (1) by demonstrating that he “‘would be singled out

4    individually for persecution’ if returned,” or (2) by

5    proving the existence of a “‘pattern or practice in

6    [the] . . . country of nationality . . . of persecution of

7    a group of persons similarly situated to the applicant’ and

8    establishing his or her ‘own inclusion in, and

9    identification with, such group.’”         Y.C., 741 F.3d at 332

10   (quoting 8 C.F.R. § 1208.13(b)(2)(iii)). “[I]n order to

11   establish eligibility for relief based exclusively on

12   activities undertaken after . . . arrival in the United

13   States, an alien must make some showing that authorities in

14   his country of nationality are (1) aware of his activities

15   or (2) likely to become aware of his activities.” Hongsheng

16   Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008).

17       Here,     substantial       evidence   supports     the   agency’s

18   conclusion that Sun failed to show a reasonable possibility

19   that he would be singled out for persecution. See id.; Jian

20   Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In

21   the absence of solid support in the record,” a fear of

22   persecution   is   not   well    founded   and   “is   speculative   at


                                        5
1    best.”).     Sun’s only evidence that Chinese authorities were

2    aware of his religious activities was a letter from his

3    mother,     an    interested     witness    unavailable      for     cross

4    examination.          The agency acted within its discretion in

5    declining to credit this evidence. See Y.C., 741 F.3d at 334

6    (deferring       to   agency’s   determination     that     letter    from

7    relative in China—stating that petitioner had been visited by

8    police who were aware of applicant’s pro-democracy activities

9    in the United States—was entitled to limited weight because

10   it was unsworn and submitted by an interested witness).

11   Moreover,    while     Sun   provided   certain   evidence    about    his

12   proselytizing activities (which the agency, in any event, did

13   not credit) he does not challenge the IJ’s finding, supported

14   by   country-conditions       evidence,    that   Chinese    authorities

15   focus their efforts on pastors or leaders of house churches,

16   not individual worshipers. See Xiao Ji Chen, 471 F.3d at 342

17   (weight accorded to an applicant’s evidence “lie[s] largely

18   within the discretion of the IJ” (internal quotation marks

19   omitted)).

20        Further, substantial evidence also supports the agency’s

21   determination that Sun failed to establish a pattern or

22   practice of persecuting underground Christians in China. See


                                         6
1    Jian Xing Huang, 421 F.3d at 129. To establish such a pattern

2    or practice, an applicant must demonstrate that the harm to

3    that group is “systemic or pervasive.”        In re A-M-, 23 I. &

4    N. Dec. 737, 741 (B.I.A. 2005); see Mufied v. Mukasey, 508

5    F.3d 88, 92-93 (2d Cir. 2007). The agency properly considered

6    the country conditions evidence, see Xiao Ji Chen, 471 F.3d

7    at 342, and reasonably concluded that there was not systemic

8    or pervasive persecution, observing that tens of millions of

9    Christians practice this faith in China without apparent

10   interference.

11       Accordingly,     we   identify   no   error   in   the   agency’s

12   decision to deny Sun asylum, withholding of removal, or CAT

13   relief.

14       For the foregoing reasons, the petition for review is

15   DISMISSED IN PART and DENIED IN REMAINING PART.          As we have

16   completed our review, any stay of removal that the Court

17   previously granted in this petition is VACATED, and any

18   pending motion for a stay of removal in this petition is

19   DISMISSED as moot.    Any pending request for oral argument in

20   this petition is DENIED in accordance with Federal Rule of

21




                                      7
1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                         FOR THE COURT:
4                         Catherine O’Hagan Wolfe
5                         Clerk of Court




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