         13-2892
         Wen v. Holder
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A205 032 463
                          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 15th day of July, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       JIUCHENG WEN,
14                Petitioner,
15
16                       v.                                     13-2892
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Zhong Yue Zhang, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Cindy S. Ferrier, Assistant
27                                     Director; Michele Y.F. Sarko, Trial
28                                     Attorney, Civil Division, Office of
29                                     Immigration Litigation, United States
30                                     Department of Justice, Washington,
31                                     D.C.
 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 Jiucheng Wen, a native and citizen of China,

 6   seeks review of a July 8, 2013 decision of the BIA affirming

 7   an October 1, 2012 decision of an Immigration Judge (“IJ”)

 8   denying Wen’s application for asylum, withholding of removal,

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

10   re Jiucheng Wen, No. A205 032 463 (B.I.A. July 8, 2013), aff’g

11   No. A205 032 463 (Immig. Ct. N.Y. City Oct. 1, 2012).                    We

12   assume the parties’ familiarity with the underlying facts and

13   procedural history in this case.

14          Under the circumstances of this case, we have considered

15   both    the   IJ’s   and   the   BIA’s   opinions   “for   the   sake    of

16   completeness.”       Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

17   2008) (per curiam) (internal quotation marks omitted).                  The

18   applicable standards of review are well established.               See 8

19   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

20   513 (2d Cir. 2009).

21          Wen did not claim to have suffered past persecution, so

22   he needed to show a well-founded fear of future persecution.


                                          2
 1   8   C.F.R.   §    1208.13(b)(2).       “Put     simply,    to    establish      a

 2   well-founded      fear    of   persecution      in   the   absence      of    any

 3   evidence of past persecution, an alien must make some showing

 4   that authorities in his country of nationality are either

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

 6   activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d

 7   Cir. 2008) (per curiam).

 8        The agency reasonably concluded that Wen failed to make

 9   that showing. Wen testified that his father reported that the

10   Chinese police have visited his home seven times to threaten

11   Wen with persecution if he returns.                  His father’s letter

12   attested     to    one    such   visit.         When   pressed       on      this

13   inconsistency,      Wen    testified     that    the   six      other     visits

14   occurred after his father wrote the letter, and that his

15   attorney never asked for an updated one.               The agency was not

16   compelled to credit this explanation. Majidi v. Gonzales, 430

17   F.3d 77, 80-81 (2d Cir. 2005).            Given the inconsistency, and

18   the fact that Wen’s father was an interested witness who was

19   unavailable for cross examination, the agency was also within

20   its discretion to discount the letter.               Xiao Ji Chen v. U.S.

21   Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (weight

22   afforded evidence lies largely within the discretion of the


                                          3
 1   agency); Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 215 (BIA

 2   2010) (agency can give little weight to document drafted by

 3   interested witness not subject to cross-examination), rev’d on

 4   other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d

 5   Cir. 2012).

 6       Wen’s testimony that his ex-wife received a similar visit

 7   did not sufficiently bolster his claim: he failed to provide

 8   any corroborating evidence of the visit. “Where the trier of

 9   fact determines that the applicant should provide evidence

10   that corroborates otherwise credible testimony, such evidence

11   must be provided unless the applicant does not have the

12   evidence and cannot reasonably obtain the evidence.” Yan Juan

13   Chen v. Holder, 658 F.3d 246, 252 (2d Cir. 2011) (per curiam)

14   (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)).             The agency was not

15   compelled to accept Wen’s explanation that he did not submit

16   an affidavit from his ex-wife because their relationship is

17   strained.

18       Wen     also   posited   that   the   Chinese    government   could

19   identify him by cross-matching surveillance footage of him

20   demonstrating outside the Chinese consulate, his Internet

21   articles on the China Democracy Party (“CDP”) website, his

22   Chinese household registration identification, and the exit

23   record on his passport.      The agency was not compelled to make

                                         4
 1   these inferential leaps.           Indeed, “[i]n the absence of solid

 2   support in the record for [an applicant’s] assertion that he

 3   will be [persecuted], his fear is speculative at best.” Jian

 4   Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per

 5   curiam).       Record evidence shows that the Chinese government

 6   monitors electronic communications within its own borders, but

 7   that does not mean it surveils all protests in the United

 8   States    or    that   it    “is   aware   of    every   anti-Communist      or

 9   pro-democracy piece of commentary published online.”                  Y.C. v.

10   Holder, 741 F.3d 324, 334 (2d Cir. 2013).

11       Nor did the agency err in finding that Wen failed to

12   establish      that    the   Chinese   government        has   a   pattern   or

13   practice of persecuting people similarly situated to him. See

14   8 C.F.R. § 1208.13(b)(2)(iii)(A).               At his merits hearing, Wen

15   highlighted three CDP members who were persecuted when they

16   returned to China.           But as the IJ noted, one was a founding

17   member of the CDP and the other two were members of CDP in

18   China.     Wen, on the other hand, joined the CDP in the United

19   States.        On appeal, Wen has highlighted the plight of an

20   artist who was beaten and placed on house arrest in China.

21   But the country report he cites identifies the person as an

22   “artist and activist,” not a CDP member, and says nothing

23   about him engaging in pro-democracy protests in the United

24   States.

                                            5
 1       Having reasonably found that Wen failed to establish the

 2   objective likelihood of persecution needed for asylum, the

 3   agency did not err in denying withholding of removal and

 4   relief under the CAT, because these claims shared the same

 5   factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57

 6   (2d Cir. 2006).

 7       For the foregoing reasons, the petition for review is

 8   DENIED.   As we have completed our review, the pending motion

 9   for a stay of removal in this petition is DISMISSED as moot.

10

11                               FOR THE COURT:
12                               Catherine O’Hagan Wolfe, Clerk
13
14




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