     15-960
     Li v. Lynch

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 24th day of May, two thousand sixteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                BARRINGTON D. PARKER,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       XIAOXIANG LI,
13                Petitioner,
14
15                    -v.-                                               15-960
16
17       LORETTA E. LYNCH, UNITED STATES
18       ATTORNEY GENERAL,*
19                Respondent.
20       - - - - - - - - - - - - - - - - - - - -X
21




                *
                 Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Loretta E. Lynch is automatically
         substituted for former Attorney General Eric H. Holder, Jr.
                                                  1
 1   FOR PETITIONER:                   GARY J. YERMAN, YERMAN &
 2                                     ASSOCIATES, LLC, New York,
 3                                     New York.
 4   FOR RESPONDENT:                  DANIEL ERIC GOLDMAN (with
 5                                    John S. Hogan & Robbin K.
 6                                    Blaya on the brief) for
 7                                    Benjamin C. Mizer, Principal
 8                                    Deputy Assistant Attorney
 9                                    General, Department of
10                                    Justice Civil Division,
11                                    Washington, D.C.
12
13        UPON DUE CONSIDERATION of this petition for review of a
14   Board of Immigration Appeals (“BIA”) decision, it is hereby
15   ORDERED, ADJUDGED, and DECREED that the petition for review
16   is DENIED.
17
18        Petitioner Xiaoxiang Li, a native of the People’s
19   Republic of China, seeks review of a March 11, 2015 decision
20   of the BIA affirming an October 2, 2012 decision of an
21   Immigration Judge (“IJ”) denying Li’s application for
22   asylum, withholding of removal, and relief under the
23   Convention Against Torture (“CAT”). We assume the parties’
24   familiarity with the underlying facts, the procedural
25   history, and the issues presented for review.
26
27        “When the BIA issues an opinion, ‘the opinion becomes
28   the basis for judicial review of the decision of which the
29   alien is complaining.’” Chen v. Gonzales, 417 F.3d 268, 271
30   (2d Cir. 2005) (quoting Niam v. Ashcroft, 354 F.3d 652, 655
31   (7th Cir. 2004)). The applicable standards of review are
32   well established. See 8 U.S.C. § 1252(b)(4)(B); see also
33   Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
34
35        The Attorney General may grant asylum to an alien upon
36   a determination that the alien is a “refugee” under 8 U.S.C.
37   § 1101(a)(42). See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421,
38   427-28 (1987). The provision defines a refugee as a person
39   “who is unable or unwilling to return to” his native country
40   because of “persecution or a well-founded fear of
41   persecution on account of race, religion, nationality,
42   membership in a particular social group, or political
43   opinion.” 8 U.S.C. § 1101(a)(42)(A). Thus “[a]n applicant
44   may qualify for refugee status in two ways. First, he may
45   demonstrate that he has suffered past persecution, in which
46   case a presumption arises that he has a well-founded fear of


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 1   future persecution.” Ramsameachire v. Ashcroft, 357 F.3d
 2   169, 178 (2d Cir. 2004). This Li has not undertaken to do.
 3
 4        “Second, the applicant may establish that he has a
 5   well-founded fear of future persecution, which requires that
 6   the alien present credible testimony that he subjectively
 7   fears persecution and establishes that his fear is
 8   objectively reasonable.” Id.
 9
10        The BIA correctly determined that Li failed to adduce
11   sufficient evidence to support his claim. Li proffered no
12   evidence that the Chinese government was aware of his
13   activities in the United States on behalf of the China
14   Democracy Party. The diminished weight given to the unsworn
15   and unsigned letter written by Li’s father was within the
16   sound discretion of the agency. See Y.C. v. Holder, 741
17   F.3d 324, 334 (2d Cir. 2013) (“The agency [was entitled to
18   give such a] letter ‘very little evidentiary weight,’ both
19   because it was unsworn and because it was submitted by an
20   interested witness. We defer to the agency’s determination
21   of the weight afforded to an alien’s documentary
22   evidence.”). In any event, the letter does not indicate
23   that the Chinese government was aware of Li’s activities,
24   but rather that some inquiry was made as to whether Li
25   joined an anti-Chinese Communist Party organization in the
26   United States. Nor has Li, in order to sustain his
27   evidentiary burden, shown a pattern or practice of
28   persecution directed at similarly situated individuals based
29   on the practice of Christianity; the record indicates that
30   although underground Christian groups are targeted in parts
31   of China, the practice is not uniform throughout the
32   country. The objective component of Li’s claim is
33   accordingly lacking. See Huang v. I.N.S., 421 F.3d 125, 129
34   (2d Cir. 2005) (“In the absence of solid support in the
35   record . . . [the alien’s] fear is speculative at best.”).
36
37        Our decision on Li’s asylum claim is fatal to his
38   withholding of removal claim; “[b]ecause the withholding of
39   removal analysis overlaps factually with the asylum
40   analysis, but involves a higher burden of proof, an alien
41   who fails to establish his entitlement to asylum necessarily
42   fails to establish his entitlement to withholding of
43   removal.” Ramsameachire, 357 F.3d at 178. And Li did not
44   adequately raise his CAT claim before the BIA; it is waived.
45   See Foster v. I.N.S., 376 F.3d 75, 78 (2d Cir. 2004) (“To
46   preserve a claim, we require ‘[p]etitioner to raise issues
47   to the BIA in order to preserve them for judicial review.’”

                                  3
 1   (alteration and emphasis in original) (quoting Cervantes-
 2   Ascencio v. I.N.S., 326 F.3d 83, 87 (2d Cir. 2003))).
 3
 4        For the foregoing reasons, the petition for review is
 5   DENIED. Petitioner’s motion for a stay of removal is
 6   DENIED.
 7
 8                              FOR THE COURT:
 9                              CATHERINE O’HAGAN WOLFE, CLERK
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