    16-2014
    Wu v. Sessions
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A205 806 721
                          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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    13th day of October, two thousand seventeen.

    PRESENT:
             JON O. NEWMAN,
             RICHARD C. WESLEY,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _____________________________________

    ZHIMIAO WU,
             Petitioner,

                     v.                                              16-2014
                                                                     NAC
    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Theodore N. Cox, New York, NY.

    FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
                                         Attorney General, Civil Division;
                                         Erica B. Miles, Senior Litigation
                                         Counsel; Anthony O. Pottinger, Trial
                                         Attorney, Office of Immigration
                                         Litigation, United States
                                         Department of Justice, Washington,
                                         DC.
     UPON DUE CONSIDERATION of this petition for review of a

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

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

DISMISSED in part and DENIED in remaining part.

     Petitioner Zhimiao Wu, a native and citizen of China, seeks

review of a May 31, 2016, decision of the BIA affirming a

February 10, 2015, decision of an Immigration Judge (“IJ”)

denying Wu’s application for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”).         In

re Zhimiao Wu, No. A205 806 721 (B.I.A. May 31, 2016), aff’g

No. A205 806 721 (Immig. Ct. N.Y. City Feb. 10, 2015).     We assume

the parties’ familiarity with the underlying facts and

procedural history in this case.

     We have reviewed the decisions of both the IJ and the BIA

“for the sake of completeness.”       Wangchuck v. Dep’t of Homeland

Sec., 448 F.3d 524, 528 (2d Cir. 2006).             The applicable

standards of review are well established.       Y.C. v. Holder, 741

F.3d 324, 332 (2d Cir. 2013) (reviewing factual findings for

substantial evidence and questions of law de novo).

I.   One-Year Bar

     To be eligible for asylum, an alien must provide clear and

convincing evidence that his application for asylum was filed

                                  2
within one year of his arrival in the United States, or

demonstrate “either the existence of changed circumstances

which materially affect the applicant’s eligibility for asylum

or extraordinary circumstances” which prevented him from filing

an application within the one-year period.    8 U.S.C.

§ 1158(a)(2)(B), (D).   This Court lacks jurisdiction to review

the agency’s denial of an asylum application as untimely unless

the petitioner raises a constitutional claim or question of law.

8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).

    Wu has not raised a constitutional claim or question of law.

Wu argues that the agency failed to consider a letter from his

brother-in-law.   But, the IJ simply gave diminished weight to

the letter because Wu’s brother-in-law did not testify or have

personal knowledge of Wu’s arrival date.    The weight given to

the evidence is a factual determination not subject to review.

See Boluk v. Holder, 642 F.3d 297, 304 (2d Cir. 2011); Xiao Ji

Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 332 (2d Cir. 2006);

see also Y.C., 741 F.3d at 334 (“We defer to the agency’s

determination of the weight afforded to an alien’s documentary

evidence.”).

    The IJ also found that Wu’s testimony was internally

inconsistent and inconsistent with his application.   Wu argues

                               3
that the IJ erred as a matter of law by not making an explicit

adverse credibility determination, and that he is entitled to

a presumption of credibility on appeal.    This is not a question

of law because the IJ identified specific inconsistencies, and

concluded that the inconsistencies undermined Wu’s credibility

as to the timeliness of his application.   See Zaman v. Mukasey,

514 F.3d 233, 237-38 (2d Cir. 2008) (concluding that IJ’s

specific reasons to cast doubt upon an applicant’s credibility

was “sufficient to qualify as an ‘explicit credibility

finding’”).   Any challenge to inconsistency findings are

factual arguments not subject to review.    See Xiao Ji Chen, 471

F.3d at 329, 333.

II.   Well-Founded Fear

      The agency alternatively denied asylum, as well as

withholding of removal and CAT relief on the ground that Wu did

not show a well-founded fear of persecution on account of his

practice of Christianity.1   In the absence of past persecution,

an applicant may establish eligibility for asylum by showing

a well-founded fear of future persecution.     8 C.F.R.

§ 1208.13(b)(2).    A well-founded fear is “a subjective fear

that is objectively reasonable.”   Dong Zhong Zheng v. Mukasey,

1 Wu does not press any family planning-based claims in this
Court.
                              4
552 F.3d 277, 284 (2d Cir. 2009) (quoting Tambadou v. Gonzales,

446 F.3d 298, 302 (2d Cir. 2006)).      An applicant, like Wu, who

is seeking asylum “based exclusively on activities undertaken

after his arrival in the United States” must show that

authorities in his country of origin are either aware of his

activities, or likely to become aware of his activities to

demonstrate a well-founded fear.       Hongsheng Leng v. Mukasey,

528 F.3d 135, 138, 143 (2d Cir. 2008).      An applicant may show

either that he would be singled out individually for

persecution, or that there is a pattern or practice of

persecution of persons similarly situated to him.      Id. at 142;

see 8 C.F.R. § 1208.13(b)(2)(iii).       Wu does not argue that

Chinese officials are actually aware of his Christian

activities in the United States.       Therefore, he must

demonstrate that Chinese officials are likely to become aware

that he is a practicing Christian.       Hongsheng Leng, 528 F.3d

at 143.

    The agency reasonably concluded that Wu failed to establish

a well-founded fear of persecution as a Christian.      Wu argues

that he will attend an underground church and proselytize in

public, and that the agency failed to consider the implications

of his intent to proselytize.       In essence, Wu’s claim is that

                                5
there is a pattern or practice of persecution of individuals

who attend underground churches and proselytize.        The IJ

acknowledged “some amount of persecution for those who attend

or lead unaffiliated or underground churches.”         However, the

IJ reasonably concluded that the country conditions evidence

did not show a pattern or practice of persecution given that

millions of Christians in China practice in unregistered

churches, their treatment varies by region, and some local

authorities approve of or do not interfere with unregistered

religious groups.

    In light of the evidence that there is a large population

of Christians worshipping at unregistered churches, and the

lack of evidence of persecution in Wu’s home province, the

agency did not err in concluding that Wu did not establish an

objectively reasonable fear of future persecution in China.

See 8 C.F.R. § 1208.13(b)(2)(iii); Santoso v. Holder, 580 F.3d

110, 112 & n.1 (2d Cir. 2009) (denying petition where agency

considered   background   materials   and   rejected    pattern   or

practice claim because violence was not countrywide); see also

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

(“In the absence of solid support in the record . . . [a] fear

is speculative at best.”).

                               6
    Because Wu was unable to satisfy his burden of proof for

asylum, his claims for withholding of removal and CAT relief

also fail; they “entail a greater likelihood of future

persecution than that required for the grant of asylum.”   Lecaj

v. Holder, 616 F.3d 111, 119 (2d Cir. 2010).

    For the foregoing reasons, the petition for review is

DISMISSED in part and DENIED in remaining part.      As we have

completed our review, any stay of removal that the Court

previously granted in this petition is VACATED, and any pending

motion for a stay of removal in this petition is DISMISSED as

moot.   Any pending request for oral argument in this petition

is DENIED in accordance with Federal Rule of Appellate Procedure

34(a)(2), and Second Circuit Local Rule 34.1(b).

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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