     14-3414
     Chen v. Lynch
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A200 924 748

                          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   23rd day of June, two thousand fifteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            BARRINGTON D. PARKER,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   QING CHEN,
14            Petitioner,
15
16                   v.                                              14-3414
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,*
21            Respondent.
22   _____________________________________
23
24


     * 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., as the Respondent in this case.
 1   FOR PETITIONER:             Douglas B. Payne, New York, New York.
 2
 3   FOR RESPONDENT:             Benjamin C. Mizer, Acting Assistant
 4                               Attorney General; Melissa
 5                               Neiman-Kelting, Senior Litigation
 6                               Counsel; Anna Nelson, Trial
 7                               Attorney, Office of Immigration
 8                               Litigation, United States
 9                               Department of Justice, Washington,
10                               D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

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

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

15   DENIED.

16       Petitioner Qing Chen, a native and citizen of People’s

17   Republic of China, seeks review of an August 21, 2014, decision

18   of the BIA affirming a March 6, 2013, decision of an Immigration

19   Judge (“IJ”) denying Chen’s application for asylum, withholding

20   of removal, and relief under the Convention Against Torture

21   (“CAT”).    In re Qing Chen, No. A200 924 748 (B.I.A. Aug. 21,

22   2014), aff’g No. A200 924 748 (Immig. Ct. N.Y. City Mar. 6,

23   2013).    We assume the parties’ familiarity with the underlying

24   facts and procedural history in this case.

25       Under the circumstances of this case, we have reviewed the

26   decision of the IJ as supplemented by the BIA.       Yan Chen v.

                                     2
1    Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).          The applicable

2    standards of review are well established.                See 8 U.S.C.

3    § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510,

4    513 (2d Cir. 2009).

5    Asylum, Withholding of Removal, and CAT Relief

6         Substantial evidence supports the agency’s determination

7    that Chen failed to establish a well-founded fear of persecution

8    on   account   of   her   religion.   In   order   “to   establish   a

9    well-founded fear of persecution in the absence of any evidence

10   of past persecution, an alien must make some showing that

11   authorities in his country of nationality are either aware of

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

13   Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).

14   Contrary to Chen’s contention, this requirement is not limited

15   to applicants who claim a well-founded fear based on activities

16   conducted only in the United States, but rather extends to

17   applicants, such as Chen, who intend to continue activities

18   commenced in the United States upon removal to their home

19   country.   See id. at 142-43 (citing Kyaw Zwar Tun v. INS, 445

20   F.3d 554, 565 (2d Cir. 2006)).


                                       3
1        Chen does not otherwise challenge the agency’s dispositive

2    determination that she failed to demonstrate that Chinese

3    authorities are likely to discover her religious practice.

4    That finding was reasonable given that the 2011 U.S. Department

5    of State’s International Religious Freedom Report provides that

6    between 50 and 70 million Christians practice in unregistered

7    church gatherings in China.

8        Moreover, the agency reasonable found speculative Chen’s

9    claim that, if her religious practice were discovered, she would

10   face persecution.   See Jian Xing Huang v. INS, 421 F.3d 125,

11   129 (2d Cir. 2005).    Although Chen submitted evidence that

12   individuals in certain provinces face religious persecution,

13   she did not present any evidence that religious persecution

14   occurs in her home province.   See id.; see also Jian Hui Shao

15   v. Mukasey, 546 F.3d 138, 142, 149, 169 (2d Cir. 2008) (finding

16   no error in the BIA’s requirement that an applicant demonstrate

17   that officials in her local area enforce a government policy

18   in a manner that would give rise to a well-founded fear of

19   persecution when the country conditions evidence demonstrates

20   local variations in the enforcement of that policy).


                                    4
1         Accordingly, because Chen failed to satisfy her burden of

2    demonstrating that Chinese officials are aware of or likely to

3    become aware of her religious practice or that officials would

4    harm her on account of her religion, substantial evidence

5    supports   the   agency’s   determination   that   she   failed   to

6    establish a well-founded fear of persecution.       See Hongsheng

7    Leng, 528 F.3d at 143; Jian Xing Huang, 421 F.3d at 129.      That

8    finding was dispositive of asylum, withholding of removal, and

9    CAT relief because those claims were based on the same factual

10   predicate.   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

11   2006).

12   Ineffective Assistance of Counsel

13        The BIA did not err in rejecting Chen’s ineffective

14   assistance of counsel claim because she failed to comply with

15   the procedural requirements announced in Matter of Lozada, 19

16   I. & N. Dec. 637 (BIA 1988).   Under Lozada, an alien is required

17   to file an affidavit detailing her agreement with former counsel

18   and to submit proof that she notified former counsel and the

19   proper disciplinary authority of her allegations.        Failure to

20   comply substantially with the Lozada requirements constitutes

21   forfeiture of an ineffective assistance claim.       See Jian Yun
                                     5
1    Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46-47 (2d Cir.

2    2005).

3        Chen did not submit any of the evidence required under

4    Lozada, but rather argued that she was exempt from those

5    requirements because her former counsel’s ineffectiveness was

6    clear on the face of the record.     “[W]e have not required a

7    slavish adherence to the [Lozada] requirements, holding only

8    that substantial compliance is necessary.”     Yi Long Yang v.

9    Gonzales, 478 F.3d 133, 143-44 (2d Cir. 2007) (citation

10   omitted).   We have found substantial compliance when the facts

11   on which an ineffective assistance of counsel claim is based

12   “are clear on the face of the record.”    Id. at 143.   Here, it

13   is not clear from the record that Chen’s former counsel was

14   ineffective such that adherence to the Lozada requirements was

15   unnecessary.

16       Chen first asserts that her former counsel was clearly

17   ineffective because direct examination spans only four pages

18   of the hearing transcript.   However, counsel’s decision to halt

19   direct examination might have been a tactical decision based

20   on Chen’s testimony.   A tactical decision, “even if unwise in

21   hindsight,” does not constitute ineffective assistance of
                                    6
1    counsel.    Changxu Jiang v. Mukasey, 522 F.3d 266, 271 (2d Cir.

2    2008).

3        Chen contends that the IJ’s finding of insufficient

4    corroboration was the result of counsel’s failure to proffer

5    Chen’s husband’s testimony.    However, the record reveals that

6    Chen was unable to provide more reliable statements from

7    uninterested third parties as she admitted that neither her

8    pastor nor any church member agreed to testify or make

9    statements on her behalf.    Therefore, because it is not clear

10   on the face of the record that former counsel was ineffective,

11   the BIA did not err in finding Chen’s ineffective assistance

12   of counsel claim forfeited for failure to comply with Lozada.

13   See Jian Yun Zheng, 409 F.3d at 46-47; see also Yi Long Yang,

14   478 F.3d at 143-44.

15       For the foregoing reasons, the petition for review is

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

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

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

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

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


                                     7
1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                              FOR THE COURT:
4                              Catherine O=Hagan Wolfe, Clerk




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