     15-1568
     Chen v. Lynch
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A089 224 983
                          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   13th day of September, two thousand sixteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            REENA RAGGI,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   MIN XIU CHEN,
14            Petitioner,
15
16                   v.                                              15-1568
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Ning Ye, Flushing, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Daniel
27                                       E. Goldman, Senior Litigation
28                                       Counsel; Samuel P. Go, Senior
29                                       Litigation Counsel, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       Washington, DC.
 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 Min Xiu Chen, a native and citizen of China,

 6   seeks review of an April 13, 2015, decision of the BIA affirming

 7   a May 1, 2013, decision of an Immigration Judge (“IJ”) denying

 8   Chen’s application for asylum, withholding of removal, and

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

10   Xiu Chen, No. A089 224 983 (B.I.A. Apr. 13, 2015), aff’g No.

11   A089 224 983 (Immig. Ct. N.Y. City May 1, 2013).   We assume the

12   parties’ familiarity with the underlying facts and procedural

13   history in this case.

14       We have reviewed the IJ’s decision “as modified by the BIA’s

15   decision.”   Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

16   520, 522 (2d Cir. 2005).    The applicable standards of review

17   are well established. See 8 U.S.C. § 1252(b)(4)(B); see also

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

19       Chen did not claim to have suffered past persecution, and

20   so she needed to show a well-founded fear of future persecution.

21   8 C.F.R. § 1208.13(b)(2).   To do so, she needed to “make some
                                    2
1    showing that authorities in [her] country of nationality are

2    either aware of [her] activities or likely to become aware of

3    [her] activities.”    Hongsheng Leng v. Mukasey, 528 F.3d 135,

4    143 (2d Cir. 2008).

5        To make that showing, Chen testified that she has joined

6    two pro-democracy organizations in the United States, the Party

7    for Freedom and Democracy in China and the Chinese Democracy

8    National Committee (“DPC”).   She described her activism in the

9    United States and submitted letters from her mother, which

10   reported that the police had admonished her to stop her

11   daughter’s activism.    The agency gave these letters little

12   weight because Chen’s mother was an interested witness not

13   subject to cross-examination; the letters were unsigned and

14   unsworn; and the accompanying envelopes and identification

15   documents did not establish authorship or authenticity.      We

16   “generally defer to the agency’s evaluation of the weight to

17   be afforded an applicant’s documentary evidence,” and do so

18   here.   Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013); Matter

19   of H-L-H- & Z-Y- Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)

20   (agency can give little weight to document drafted by interested

21   witness not subject to cross examination), rev’d on other
                                    3
1    grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).

2         Chen argues that this treatment was problematic in light

3    of   agency     regulations   governing     the    admission     of   prior

4    statements in removal proceedings.              8 C.F.R. §§ 1240.7(a),

5    1240.46(c).      These regulations have no bearing here: Chen’s

6    mother did not make her statements during a previous hearing

7    or trial.       Chen also cites various court of appeals and BIA

8    decisions dealing with the due process and Fourth Amendment

9    implications of admitting hearsay and alienage evidence during

10   removal proceedings.      These cases are inapposite: the IJ did

11   not reject the mother’s letter as hearsay, but rather discounted

12   it as unreliable.

13        The      agency’s    alternative       determination--that         the

14   background evidence on China did not demonstrate that Chen’s

15   fear of persecution is well founded even if the Chinese

16   government      was   aware   of   her   U.S.     activities--was      also

17   reasonable.       As the BIA observed, the evidence does not

18   identify returning Chinese who were harmed for being ordinary

19   members    of    pro-democracy     groups   in    the   United    States.

20   Consequently, the agency was entitled to find that, even if the

21   Chinese government knows about Chen’s activities, a reasonable
                                         4
1    person in her shoes would not fear persecution.            Chen points

2    to the Department of State’s 2007 Profile of Asylum Claims and

3    Country Conditions for the proposition that ordinary members

4    of pro-democracy groups have reason to fear.           But that report

5    states      that    “persons     who   participate   in   high-profile

6    pro-democracy activities in the United States still run the risk

7    of arrest and imprisonment should they return to China.”             As

8    the IJ reasoned, Chen is not similarly situated to those

9    persons: she merely joined in some protests and wrote four

10   internet articles.       See Jian Hui Shao v. Mukasey, 546 F.3d 138,

11   161   (2d    Cir.   2008)   (affirming     BIA’s   determination    that

12   petitioner had not demonstrated a reasonable possibility of

13   forced sterilization because, among other things, petitioner

14   failed to present “evidence of forced sterilizations to persons

15   similarly situated to himself”)

16         Chen    counters,        somewhat    confusingly,   that     “[t]o

17   distinguish ‘ordinary members’ from ‘prominent figures’ and

18   ‘leading members’ does not make sense for a ‘statutorily defined

19   group’ in its primitive development stage.”          The Government is

20   correct that Chen did not raise this argument before the BIA.

21   Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 122, 124 (2d
                                            5
1    Cir. 2007) (describing doctrine of issue exhaustion).    In any

2    event, Chen cites no evidence to support the counterintuitive

3    assertion.

4        Chen argues that the agency erroneously applied the

5    standard for withholding of removal, which requires that

6    persecution be “more likely than not,” to her claim for asylum,

7    which requires only a “well-founded fear” of persecution.

8    Compare 8 C.F.R. § 1208.16(b) (withholding), with 8 U.S.C.

9    § 1101(a)(42) (asylum).   Chen does not identify where or how

10   the IJ made this purported error, but she may be focused on the

11   IJ’s statement that an applicant must show that her persecutors

12   are either aware of her activities or “likely to become aware

13   of his activities.”   Hongsheng Leng, 528 F.3d at 143.   That is

14   a correct statement of our law.

15       Chen argues that she deserved relief based on her credible

16   testimony.   She cites a pre-REAL ID Act decision, Matter of

17   Mogharrabi, in which the BIA wrote, “The alien’s own testimony

18   may in some cases be the only evidence available, and it can

19   suffice where the testimony is believable, consistent, and

20   sufficiently detailed to provide a plausible and coherent

21   account of the basis for his fear.”   19 I. & N. Dec. 439, 445
                                    6
1    (B.I.A. 1987).    But as the Government points out, Chen does not

2    claim that her own testimony is the only evidence available--she

3    relies heavily on her mother’s letter.      Moreover, the REAL ID

4    Act provides that “[w]here the trier of fact determines that

5    the   applicant   should   provide   evidence   that   corroborates

6    otherwise credible testimony, such evidence must be provided

7    unless the applicant does not have the evidence and cannot

8    reasonably obtain the evidence.”       8 U.S.C. § 1158 (emphasis

9    added).

10         Chen argues that the IJ failed to recognize that her party

11   is an alias of the China Democracy Party (“CDP”), which the

12   Chinese government has banned, and argues that as a consequence

13   the IJ may have denied her due process.     The BIA, however, did

14   not review the IJ’s findings about the two similarly named

15   parties, and so this issue is not under review here.       Xue Hong

16   Yang, 426 F.3d at 522.

17         In a related due process claim, Chen alleges that the IJ

18   denied her request to present the testimony of Liqun Chen, a

19   DPC leader who could have explained the relationship between

20   that party and the CDP.    But the IJ did not deny Chen’s request.

21   Rather, the parties stipulated that Liqun Chen would testify
                                      7
1    in accordance with her written statement, and agreed to forgo

2    the   formality.      Given    that       stipulation,     Chen   cannot

3    demonstrate   that   “that    she   was    denied   a    full   and   fair

4    opportunity to present her claims” or that the agency “otherwise

5    deprived her of fundamental fairness.”        Burger v. Gonzales, 498

6    F.3d 131, 134 (2d Cir. 2007).

7          For the foregoing reasons, the petition for review is

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

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

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

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

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

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

14   34.1(b).

15                                   FOR THE COURT:
16                                   Catherine O=Hagan Wolfe, Clerk




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