         09-4708-ag
         Wang v. Holder
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A094 783 327
                           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 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 1 st day of June, two thousand ten.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                ROBERT A. KATZMANN,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       _______________________________________
12
13       DUN LIN WANG,
14                Petitioner,
15
16                        v.                                    09-4708-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:         Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:         Tony West, Assistant Attorney General,
26                               Civil Division; Leslie McKay, Assistant
27                               Director, Office of Immigration
28                               Litigation; Jessica Segall, Trial
29                               Attorney, Office of Immigration
30                               Litigation, Civil Division, United States
31                               Department of Justice, Washington, D.C.
32
33
1        UPON DUE CONSIDERATION of this petition for review of a

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

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5        Petitioner Dun Lin Wang, a native and citizen of the

6    People’s Republic of China, seeks review of an October 20,

7    2009, order of the BIA dismissing his appeal of the January 4,

8    2008,   decision   of   Immigration   Judge   (“IJ”)   Joanna    Miller

9    Bukszpan   pretermitting    Wang’s    application   for    asylum,   and

10   denying his application for withholding of removal and relief

11   under the Convention Against Torture (“CAT”).             In re Dun Lin

12   Wang, No. A094 783 327 (B.I.A. Oct. 20, 2009), aff’g No. A094

13   783 327 (Immig. Ct. N.Y. City Jan. 4, 2008).           We assume the

14   parties’ familiarity with the underlying facts and procedural

15   history in this case.

16       “When the BIA adopts the decision of the IJ and merely

17   supplements the IJ's decision . . . we review the decision of

18   the IJ as supplemented by the BIA.”       Yan Chen v. Gonzales, 417

19   F.3d 268, 271 (2d Cir. 2005).     Where instead, however, the BIA

20   adopts certain aspects of the IJ's decision but declines to

21   adopt others, we review the IJ's decision as modified by the

22   BIA; in other words, we do not consider those aspects of the


                                      2
1    IJ's decision not adopted by the BIA.                    See Ming Xia Chen v.

2    BIA,    435   F.3d    141,    144    (2d       Cir.2006).       Although    the    IJ

3    pretermitted        Wang’s   asylum        application,     the    BIA     assumed,

4    arguendo, that Wang qualified for an exception to the one-year

5    filing deadline and we therefore review the BIA’s analysis of

6    his asylum claim.            The applicable standards of review are

7    well-established.         See 8 U.S.C. § 1252(b)(4)(B); Jian Hui Shao

8    v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008); Salimatou Bah

9    v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

10   I.     Asylum and Withholding of Removal

11          To establish asylum eligibility based on a fear of future

12   persecution,         an   applicant        must     show    that    he     or     she

13   subjectively         fears   persecution          and    that     this     fear    is

14   objectively reasonable.             Ramsameachire v. Ashcroft, 357 F.3d

15   169,    178   (2d    Cir.    2004).        When    the   applicant’s       fear    of

16   persecution is based on activities undertaken in the United

17   States, he must demonstrate a reasonable possibility that

18   “authorities in his country of nationality are either aware of

19   his activities or likely to become aware of his activities.”

20   Hongsheng Leng v. Mukasey, 528 F.3d 135, 138-39, 143 (2d Cir.

21   2008).




                                                3
1           Substantial    evidence   supports      the   agency’s   conclusion

2    that Wang failed to demonstrate a well-founded fear of future

3    persecution on account of his activities in this country on

4    behalf of the China Democracy Party (“CDP”).               The IJ assumed

5    for purposes of her analysis that Wang was a member of the

6    CDP,   but   found   that   he   failed   to   establish    that   Chinese

7    authorities were either aware, or likely to become aware of

8    his activities because: (1) there was no indication that the

9    article Wang wrote for the CDP was ever posted online such

10   that Chinese authorities could access it; (2) Wang was only

11   one of over 200 people who were photographed participating in

12   demonstrations outside the Chinese Consulate; and (3) the

13   evidence Wang offered in support of his claim was deficient.

14   We are not persuaded by Wang’s arguments that this analysis

15   was erroneous.        To the extent Wang argues that the agency

16   applied a heightened standard, the record reflects that it

17   properly applied the standard set forth in Hongsheng Leng, 528

18   F.3d at 143.

19          We also find unavailing Wang’s argument that because his

20   testimony was deemed credible, he necessarily established a

21   well-founded fear of future persecution without additional

22   corroboration.       Although credible testimony alone may suffice


                                         4
1    to sustain an applicant’s burden, it does not always.                   See

2    Diallo v. INS, 232 F.3d 279, 286 (2d Cir. 2000); 8 U.S.C.

3    § 1158(b)(1)(B)(ii).       Moreover, the IJ did not find that the

4    record lacked corroborative evidence, but rather that the

5    evidence Wang submitted merited little weight.                We defer to

6    the IJ’s evaluation of Wang’s documentary evidence.               See Xiao

7    Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d

8    Cir. 2006).

9          Finally,     we   need   not       consider   Wang’s     unexhausted

10   arguments   that    the   IJ   erroneously     refused   to    allow:   (1)

11   additional time for Wang to supplement the record; and (2) an

12   additional witness to testify.           See Lin Zhong v. U.S. Dep’t of

13   Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).                 Because Wang

14   was unable to meet his burden for asylum, he necessarily

15   failed to meet the higher burden required for withholding of

16   removal.    Cf. Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

17   2006) (observing that where asylum claim fails on adverse

18   credibility grounds, withholding claim based upon same set of

19   facts necessarily fails).

20   II.   CAT Relief

21         Wang argues that he established his eligibility for CAT

22   relief based on his past mistreatment and indications in the


                                          5
1    State    Department       reports      that    “torture   is    widespread      in

2    Chinese prisons.”         However, we have found that “generalized

3    language       culled   from   .   .   .   State   Department     reports”      is

4    insufficient to establish that any alien who may be detained

5    upon his return to China is entitled to CAT relief.                      Mu Xiang

6    Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.

7    2005).     In light of the agency’s findings, and because Wang

8    failed    to    present    specific        evidence   that     someone    in   his

9    particular alleged circumstances faces a likelihood of torture

10   in China, the agency reasonably denied his request for CAT

11   relief.    See id.

12       For the foregoing reasons, the petition for review is

13   DENIED.    As we have completed our review, any stay of removal

14   that the Court previously granted in this petition is VACATED,

15   and any pending motion for a stay of removal in this petition

16   is DISMISSED as moot.          Any pending request for oral argument

17   in this petition is DENIED in accordance with Federal Rule of

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

19   34.1(b).

20
21                                          FOR THE COURT:
22                                          Catherine O’Hagan Wolfe, Clerk
23
24
25




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