     17-2215
     Chen v. Barr
                                                                                   BIA
                                                                                Hom, IJ
                                                                           A206 103 550
                         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 15th day of April, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT D. SACK,
 8            PETER W. HALL,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   WU XIN CHEN, AKA XIN CHEN WU,
14                 Petitioner,
15
16                  v.                                           17-2215
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20                 Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Yee Ling Poon; Deborah
24                                    Niedermeyer, Law Office of Yee
25                                    Ling Poon, LLC, New York, NY.
26
27   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
28                                    Attorney General; Greg D. Mack,
29                                    Senior Litigation Counsel;
1                                 Virginia L. Gordon, Trial
2                                 Attorney, Office of Immigration
3                                 Litigation, United States
4                                 Department of Justice, Washington,
5                                 DC.
6
7        UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DENIED.

11       Petitioner Wu Xin Chen, a native and citizen of the

12   People’s Republic of China, seeks review of a June 22, 2017,

13   decision of the BIA affirming a December 1, 2016, decision of

14   an Immigration Judge (“IJ”) denying Chen’s application for

15   asylum,   withholding   of   removal,   and   relief   under   the

16   Convention Against Torture (“CAT”).     In re Wu Xin Chen, No.

17   A 206 103 550 (B.I.A. June 22, 2017), aff’g No. A 206 103 550

18   (Immig. Ct. N.Y. City Dec. 1, 2016).     We assume the parties’

19   familiarity with the underlying facts and procedural history

20   in this case.

21       We have reviewed the IJ’s decision as modified and

22   supplemented by the BIA.     Wala v. Mukasey, 511 F.3d 102, 105

23   (2d Cir. 2007).    Because the BIA assumed credibility, the

24   adverse credibility determination is not before us.       See Yan
                                     2
1    Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).                   The

2    applicable standards of review are well established.                  See

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

4    196 (2d Cir. 2009); Yanqin Weng v. Holder, 562 F.3d 510, 513

5    (2d Cir. 2009).

6    Ineffective Assistance of Counsel

7        The BIA did not err in rejecting Chen’s allegations of

8    ineffective assistance of counsel for failure to comply with

9    Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1998).                 Lozada

10   requires an alien to file an affidavit detailing his agreement

11   with former counsel and submit proof that he notified former

12   counsel   and    the   proper   disciplinary         authority   of   his

13   allegations.      19   I.   &   N.       Dec.   at   639.   We   require

14   “substantial compliance,” but not “slavish adherence to the

15   requirements.”    Yi Long Yang v. Gonzales, 478 F.3d 133, 143-

16   44 (2d Cir. 2007).     Failure to comply substantially with the

17   Lozada requirements constitutes forfeiture of an ineffective

18   assistance claim.       See Jian Yun Zheng v. U.S. Dep’t of

19   Justice, 409 F.3d 43, 46-47 (2d Cir. 2005).                 Substantial

20   compliance is required “to deter meritless claims and to

21   provide a basis for determining whether counsel’s assistance
                                          3
1    was in fact ineffective.”             Twum v. INS, 411 F.3d 54, 59 (2d

2    Cir. 2005).

3        Chen contends that his prior counsel was ineffective for

4    failing to explain to the IJ why documents were untimely

5    filed;   to    file    a    motion    to    extend    the   time    for   filing

6    evidence; and to timely file country conditions evidence.1

7    As to that last claim, he argues that he is exempt from

8    complying with Lozada because the ineffectiveness was clear

9    on the face of the record.              Chen’s former counsel admitted

10   fault    for   the    untimely       submission      of   country   conditions

11   evidence.      Even if Chen were not bound by Lozada, however,

12   he cannot show the prejudice needed to state an ineffective

13   assistance     claim       because    the    IJ   considered       evidence   of

14   country conditions notwithstanding Chen’s counsel’s failure

15   to file it on time.         See Rashid v. Mukasey, 533 F.3d 127, 131




     1
      We decline to consider the remaining ineffective assistance
     claims regarding the translation and the IJ’s questioning
     because they were not exhausted before the BIA.       See Lin
     Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122-24 (2d Cir.
     2007) (describing issue exhaustion as mandatory); Arango-
     Aradondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994) (holding
     that petitioner must first raise ineffective assistance of
     counsel claim with the BIA).
                                   4
1    (2d Cir. 2008) (requiring showing of prejudice to prevail on

2    an ineffective assistance claim).

3          As to the first two claims, Chen relies on Yi Long Yang

4    to argue that he is exempt from Lozada’s requirements.               But

5    his reliance is misplaced inasmuch as Lozada was inapplicable

6    in that case because counsel had already been disbarred.             See

 7   Yi Long Yang, 478 F.3d at 143.          Chen makes no such allegation

 8   here.     Chen was therefore required to comply with Lozada as

 9   to these allegations.        See Jian Yun Zheng, 409 F.3d at 46-

10   47.

11   Corroboration

12         “The testimony of the applicant may be sufficient to

13   sustain the applicant’s burden without corroboration, but

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

15   applicant’s testimony is credible, is persuasive, and refers

16   to    specific   facts     sufficient     to    demonstrate   that   the

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

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

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

20   weigh the credible testimony along with other evidence of

21   record.      Where   the    trier   of   fact    determines   that   the
                                         5
1    applicant should provide evidence that corroborates otherwise

2    credible testimony, such evidence must be provided unless the

3    applicant does not have the evidence and cannot reasonably

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

5        It was reasonable for the IJ to require evidence to

6    corroborate Chen’s testimony–which was offered to establish

7    that he had been persecuted while living in China-because

8    Chen’s testimony was vague and lacking in detail.          See

9    8 U.S.C. § 1158(b)(1)(B)(i); see also Chuilu Liu, 575 F.3d at

10   196-97.     And the agency properly identified the missing

11   evidence.   See Chuilu Liu, 575 F.3d at 198-99.   The IJ noted

12   that Chen failed to corroborate his testimony offered to

13   establish past persecution.       Chen testified that he was

14   arrested for distributing church flyers while in China.   But

15   Chen did not provide timely filed affidavits from his father,

16   mother, or the other church member whom he was allegedly

17   arrested with.   Nor did Chen corroborate his testimony that

18   when he was in China, his parents were forced to pay a bribe,

19   that he was charged with being a member of a cult, or that

20   the police came to his home looking for him after he left for

21   the United States.   Chen did not establish that corroborating
                                   6
1    evidence from his family and fellow arrestee was unavailable,

2    and his untimely submission of a letter from his father

3    indicates      that     he     could     have    obtained      more    detailed

4    statements at an earlier date.                  See id. at 198; 8 U.S.C.

5    § 1252(b)(4) (“No court shall reverse a determination made by

6    a   trier   of   fact        with   respect      to   the     availability   of

7    corroborating evidence . . . unless . . . a reasonable trier

8    of fact is compelled to conclude that such corroborating

9    evidence is unavailable.”).             Chen asserted that a letter from

10   the church member he was arrested with and evidence that he

11   was charged with being part of a cult and that his parents

12   had the funds to pay a bribe, was not available, but he did

13   not explain why.         In sum, given Chen’s vague testimony and

14   the lack of reliable corroboration, the agency did not err in

15   finding that Chen failed to satisfy his burden of proof as to

16   his    claim      of         past      persecution.            See     8 U.S.C.

17   § 1158(b)(1)(B)(ii).

18   Well-Founded Fear of Future Persecution

19         Absent     past    persecution,           an    alien    may    establish

20   eligibility for asylum by demonstrating a well-founded fear

21   of future persecution, 8 C.F.R. § 1208.13(b)(2), which must
                                              7
1    be both subjectively credible and objectively reasonable,

2    Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

3    To demonstrate a well-founded fear, an applicant must show

4    either a reasonable possibility that he would be “singled

5    out” for persecution or that the country of removal has a

6    “pattern or practice” of persecuting individuals “similarly

7    situated”   to     him.     8   C.F.R.   § 1208.13(b)(2)(iii).

8    Furthermore, where a claim is based on activities undertaken

9    solely in the United States, “an alien must make some showing

10   that authorities in his country of nationality are either

11   aware of his activities or likely to become aware of his

12   activities.”     Hongsheng Leng v. Mukasey, 528 F.3d 135, 143

13   (2d Cir. 2008).

14       The IJ did not err in finding that Chen’s practice of

15   Christianity in the United States did not establish a well-

16   founded fear of persecution.    Chen did not show a pattern or

17   practice of persecution of similarly situated individuals or

18   that the Chinese government was or would likely become aware

19   of his practice of Christianity in the United States.     The

20   2015 State Department International Religious Freedom Report

21   states that, “[i]n some parts of the country . . . local
                                     8
1    authorities allowed or at least did not interfere with the

2    activities of unregistered religious groups,” and as the IJ

3    noted, the report does not reflect persecution in Chen’s home

4    province.     Where treatment of Christians varies by region,

5    the agency does not err by requiring evidence specific to an

6    applicant’s home region.           See Jian Hui Shao v. Mukasey, 546

7    F.3d 138, 165-66, 174 (2d Cir. 2008) (finding that the BIA

8    does not err in requiring localized evidence of persecution

9    when the record reflected wide variances in how policies are

10   understood and enforced throughout China).             Furthermore, the

11   IJ reasonably concluded that although a State Department

12   report shows some arrest and mistreatment of members of

13   unregistered churches, Chinese authorities primarily target

14   church leaders.          Accordingly, the agency did not err in

15   concluding     that   Chen   failed       to   demonstrate    systemic   or

16   pervasive persecution of similarly situated Christians as

17   needed to demonstrate a pattern and practice of persecution

18   in   China.     See   8 C.F.R.      § 1208.13(b)(2)(iii);       see   also

19   Santoso v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009)

20   (denying      petition     where     agency      considered    background

21   materials and rejected pattern or practice claim); In re A-
                                           9
1    M-, 23 I. & N. Dec. 737, 741 (BIA 2005) (recognizing that a

2    pattern    or    practice      of    persecution       is    the    “systemic   or

3    pervasive” persecution of a group).

4           Furthermore, the agency did not err in finding that Chen

5    failed to establish that the Chinese government was, or would

6    likely become aware of his practice of Christianity.                        There

7    was no evidence that the Chinese government was aware of his

8    practice of Christianity in the United States.                         And it is

9    also unlikely that the Chinese government would become aware

10   of his practice once he reaches Chinese soil.                      There are tens

11   of millions of unregistered practitioners of Christianity in

12   China, and Chen did not establish that there was significant

13   persecution of Christians in his home province.                      See Jian Hui

14   Shao, 546 F.3d at 149-50, 165-66; Hongsheng Leng, 528 F.3d at

15   143.

16          For these reasons, the agency did not err in finding that

17   Chen    failed    to       satisfy   his    burden     of    establishing    past

18   persecution      or    an    objectively        reasonable     fear    of   future

19   persecution on account of his religion.                     See Chuilu Liu, 575

20   F.3d at 196-98; see also Hongsheng Leng, 528 F.3d at 142-43.

21   That    finding       is    dispositive         of   asylum,   withholding      of
                                                10
1    removal, and CAT relief because all three claims were based

2    on the same factual predicate.      See Lecaj v. Holder, 616 F.3d

3    111, 119 (2d Cir. 2010).

4        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

11   34.1(b).

12
13                       FOR THE COURT:
14                       Catherine O’Hagan Wolfe, Clerk of Court
15




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