     17-2136
     Chenwu Yang v. Barr
                                                                                   BIA
                                                                            Vomacka, IJ
                                                                           A205 448 034
                           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 31st day of May, two thousand nineteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            ROSEMARY S. POOLER,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   CHENWU YANG,
14            Petitioner,
15
16                    v.                                         17-2136
17                                                               NAC
18   WILLIAM P. BARR,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Zhen Liang Li, New York, NY.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Linda S.
27                                    Wernery, Assistant Director; Susan
28                                    Bennett Green, Senior Litigation
29                                    Counsel, Office of Immigration
1                                 Litigation, United States
2                                 Department of Justice, Washington,
3                                 DC.

4        UPON DUE CONSIDERATION of this petition for review of a

5    Board of Immigration Appeals (“BIA”) decision, it is hereby

6    ORDERED, ADJUDGED, AND DECREED that the petition for review

7    is DENIED.

8        Petitioner Chenwu Yang, a native and citizen of the

9    People’s Republic of China, seeks review of a June 16, 2017,

10   decision of the BIA affirming an October 29, 2015, decision

11   of an Immigration Judge (“IJ”) denying Yang’s application for

12   asylum,   withholding   of   removal,   and   relief   under   the

13   Convention Against Torture (“CAT”).     In re Chenwu Yang, No.

14   A 205 448 034 (B.I.A. June 16, 2017), aff’g No. A 205 448 034

15   (Immig. Ct. N.Y.C. Oct. 29, 2015).      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 IJ’s decision as modified by the BIA.      See Xue Hong Yang

20   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

21   The applicable standards of review are well established.       See

22   8 U.S.C. § 1252(b)(4)(B); Chuilu Liu v. Holder, 575 F.3d 193,

23   196 (2d Cir. 2009); Yanqin Weng v. Holder, 562 F.3d 510, 513



                                     2
1    (2d Cir. 2009).

2           Absent   past        persecution,     an    alien      may   establish

3    eligibility for asylum by demonstrating a well-founded fear

4    of     future   persecution,         8 C.F.R.     § 1208.13(b)(2),       which

5    requires an applicant to “present credible testimony that he

6    subjectively fears persecution and [to] establish that his

7    fear is objectively reasonable,” Ramsameachire v. Ashcroft,

8    357 F.3d 169, 178 (2d Cir. 2004).                 To demonstrate a well-

9    founded fear, an applicant must show either “a reasonable

10   possibility he . . . would be singled out individually for

11   persecution” or that the country of removal has a “pattern or

12   practice” of persecuting individuals similarly situated to

13   him.    8 C.F.R. § 1208.13(b)(2)(iii).             Where a claim is “based

14   exclusively on activities undertaken after his arrival in the

15   United    States,      an    alien    must      make   some    showing     that

16   authorities in his country of nationality are (1) aware of

17   his    activities   or       (2)   likely    to    become     aware   of   his

18   activities.”      Hongsheng Leng v. Mukasey, 528 F.3d 135, 138

19   (2d Cir. 2008).

20          “The testimony of the applicant may be sufficient to

21   sustain the applicant’s burden without corroboration, but

22   only if the applicant satisfies the trier of fact that the



                                            3
1    applicant’s testimony is credible, is persuasive, and refers

2    to   specific      facts     sufficient     to    demonstrate   that      the

3    applicant is a refugee.”          8 U.S.C. § 1158(b)(1)(B)(ii); see

4    also Chuilu Liu, 575 F.3d at 196-97.             “In determining whether

5    the applicant has met [his] burden, the trier of fact may

6    weigh the credible testimony along with other evidence of

7    record.        Where   the    trier   of   fact    determines    that     the

8    applicant should provide evidence that corroborates otherwise

9    credible testimony, such evidence must be provided unless the

10   applicant does not have the evidence and cannot reasonably

11   obtain the evidence.”         8 U.S.C. § 1158(b)(1)(B)(ii).

12        Yang does not challenge the agency’s finding that he

13   failed    to      present     reasonably     available       corroborating

14   evidence.       Accordingly, Yang has waived any challenge to that

15   dispositive finding.         See Norton v. Sam’s Club, 145 F.3d 114,

16   117 (2d Cir. 1998) (“Issues not sufficiently argued in the

17   briefs    are    considered     waived     and    normally   will   not    be

18   addressed on appeal.”).          In any event, as discussed below,

19   we find no error in the agency’s conclusion.

20        The IJ reasonably required evidence to corroborate Yang’s

21   testimony because Yang was not responsive to all the questions

22   posed to him—even questions his own attorney posed—and gave



                                           4
1    only vague explanations about why he became a Christian.       See

2    8 U.S.C. § 1158(b)(1)(B)(ii); see also Chuilu Liu, 575 F.3d

3    at 196-97.      The agency identified the missing evidence—

4    documentation or witness testimony regarding Yang’s church

5    attendance, a letter from his parents, and country conditions

6    evidence—and Yang did not establish that the evidence was

7    unavailable.    See Chuilu Liu, 575 F.3d at 198-99; see also 8

8    U.S.C. § 1252(b)(4) (“No court shall reverse a determination

9    made by a trier of fact with respect to the availability of

10   corroborating evidence . . . unless . . . a reasonable trier

11   of fact is compelled to conclude that such corroborating

12   evidence is unavailable.”).     Moreover, although Yang and his

13   attorney asserted that they had filed a letter from Yang’s

14   parents   and   a   baptism   certificate,   the   documents   were

15   untimely filed, never received by the IJ, and not presented

16   to the BIA.

17       Nor was the IJ required to continue the hearing because,

18   given the length of time Yang had to gather evidence, he did

19   not provide a reasonable excuse for the untimely filing.        See

20   Matter of L-A-C-, 26 I. & N. Dec. 516, 524 (BIA 2015) (“[I]t

21   is within the discretion of the [IJ] to decide whether there

22   is good cause to continue the proceedings in a particular



                                      5
1    case for additional corroboration or for any other reason.”).

2           As to the evidence of corroboration that Yang did submit,

3    the IJ did not err in assigning it little weight.                    The only

4    evidence Yang presented to corroborate his asserted church

5    attendance was a photograph; however, there was no testimony

6    or other evidentiary foundation for the photograph, and it

7    did not show a church service.                See Xiao Ji Chen v. U.S.

8    Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006) (holding

9    that determination of the weight of evidence is largely matter

10   of agency discretion).

11          More significantly, the agency did not err in determining

12   that the country conditions evidence failed to demonstrate a

13   pattern or practice of persecution of similarly situated

14   individuals.       As the IJ noted, the State Department report

15   reflected varied enforcement of restrictions on Christians

16   and identified no persecution of Christians in Yang’s home

17   province of Fujian.      See Jian Hui Shao v. Mukasey, 546 F.3d

18   138,    149-50,     165-66   (2d    Cir.       2008)    (upholding      BIA’s

19   conclusion    that    when   fear   of     persecution        is   based    on

20   enforcement of a policy that varies by region, it is the

21   applicant’s burden to show enforcement of the policy in his

22   home    region).     Accordingly,       the    agency   did    not    err   in



                                         6
1    determining that Yang failed to demonstrate a pattern and

2    practice of persecution, particularly in light of an estimate

3    cited in the State Department report on which the IJ relied

4    that there are 45 million Protestant Christians in China not

5    affiliated     with    the   government-sponsored       church.     See

6    8 C.F.R. § 1208.13(b)(2)(iii); see also Santoso v. Holder,

7    580 F.3d 110, 112 & n.1 (2d Cir. 2009) (denying petition where

8    agency considered background materials and rejected pattern

9    or practice claim); In re A-M-, 23 I. & N. Dec. 737, 741 (BIA

10   2005) (recognizing that a pattern or practice of persecution

11   is the “systemic or pervasive” persecution of a group).

12        The agency also did not err in finding that Yang failed

13   to establish a reasonable possibility of being singled out

14   for persecution.       Yang did not assert that Chinese officials

15   are aware of his religious practice.            Additionally, in light

16   of   the     tens     of   millions       of   unregistered   Christian

17   practitioners in China and the lack of evidence regarding the

18   persecution of Christians in Fujian province, Yang did not

19   demonstrate that Chinese officials are likely to discover his

20   religious activities as required for him to establish an

21   objectively reasonable well-founded fear.               See Hongsheng

22   Leng, 528 F.3d at 143.



                                           7
1        Therefore, because the agency reasonably found that Yang

2    failed to demonstrate a well-founded fear of persecution, it

3    did not err in denying asylum, withholding of removal, and

4    CAT relief, since all three claims were based on the same

5    factual predicate.    See Lecaj v. Holder, 616 F.3d 111, 119-20

6    (2d Cir. 2010).      Because this conclusion is dispositive of

7    Yang’s   petition,   we   do    not       address   whether   the   adverse

8    credibility determination provides an independent basis for

9    the agency’s decision.         See INS v. Bagamasbad, 429 U.S. 24,

10   25 (1976) (“As a general rule courts and agencies are not

11   required to make findings on issues the decision of which is

12   unnecessary to the results they reach.”).

13       We have considered the remainder of Yang’s arguments and

14   find them to be without merit.              For the foregoing reasons,

15   the petition for review is DENIED.

16                                     FOR THE COURT:
17                                     Catherine O’Hagan Wolfe, Clerk




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