     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




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