Opinion
20-1760 NAC
07-07-2022
LAN LAN YAN, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Adedayo O. Idowu, Esq., New York, NY. FOR RESPONDENT: Brian Boyton, Acting Assistant Attorney General; Holly M. Smith, Senior Litigation Counsel; Jesse D. Lorenz, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UNPUBLISHED OPINION
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.
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 7th day of July,two thousand twenty-two.
FOR PETITIONER:
Adedayo O. Idowu, Esq., New York, NY.
FOR RESPONDENT:
Brian Boyton, Acting Assistant Attorney General; Holly M. Smith, Senior Litigation Counsel; Jesse D. Lorenz, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
PRESENT: ROSEMARY S. POOLER, RICHARD C. WESLEY, WILLIAM J. NARDINI, Circuit Judges.
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 DENIED.
Petitioner Lan Lan Yan, a native and citizen of the People's Republic of China, seeks review of a May 6, 2020, decision of the BIA affirming a June 26, 2018, decision of an Immigration Judge ("IJ") denying asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Lan Lan Yan, No. A205 238 824 (B.I.A. May 6, 2020), aff'g No. A205 238 824 (Immig. Ct. N.Y. City June 26, 2018). We assume the parties' familiarity with the underlying facts and procedural history.
We have reviewed both the IJ's and the BIA's opinions. Wangchuck v. Dep't of Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4); Wei Sun v. Sessions, 883 F.3d 23, 27 (2d Cir. 2018) (reviewing factual findings under a substantial evidence standard and questions of law de novo).
The agency did not err in finding that Yan failed to adequately corroborate her claim that she fears persecution in China on account of her religious practice in the United States. Absent past persecution, a noncitizen may establish eligibility for asylum by demonstrating a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(2); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). To do so, an applicant must show either a reasonable possibility that she would be "singled out" for persecution or that the country of removal has a "pattern or practice" of persecuting "similarly situated" individuals. 8 C.F.R. § 1208.13(b)(2)(iii). Where an applicant's claim is based on activities in the United States, the applicant "must make some showing that authorities in h[er] country of nationality are either aware of h[er] activities" or that there is "a reasonable possibility" of them "becom[ing] aware of h[er] activities." Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (quotation marks omitted).
"The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee." 8 U.S.C. § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C); Wei Sun, 883 F.3d at 28. "In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence." 8 U.S.C. § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C).
The agency reasonably required evidence to corroborate Yan's assertions that she converted to and practices Christianity in the United States and that Chinese officials had learned of her religious practice because her testimony regarding her church attendance was inconsistent with her witness's testimony. See 8 U.S.C. § 1158(b)(1)(B)(ii); see also Wei Sun, 883 F.3d at 28. As the agency found, Yan failed to corroborate her regular attendance at church for the approximately five years before her hearing. And, although Yan submitted a village notice to show that Chinese authorities had discovered her religious practice in the United States and her proselytizing to Chinese nationals, the agency reasonably declined to credit the handwritten notice because it was not signed by an individual and the translation was not accompanied by a certificate of translation. See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) ("We generally defer to the agency's evaluation of the weight to be afforded an applicant's documentary evidence."). Further, aside from her father's unsworn letter, which the agency did not err in declining to credit because he was not available for cross-examination, the agency reasonably noted that Yan failed to reliably corroborate her assertion that she had proselytized to her father or any other Chinese national as asserted in the village notice. See Y.C., 741 F.3d at 334 (deferring to the agency's decision to afford little weight to an unsworn letter from a relative); see also In re H-L-H-& Z-Y-Z-, 25 I. &N. Dec. 209, 215 (B.I.A. 2010) (finding letters from noncitizen's friends and family insufficient support for applicant's claims because they were from interested witnesses not subject to cross-examination), overruled on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012).
Yan did not argue that any of the missing corroboration was unavailable but rather asserted that she had not asked for it. However, she bore "the ultimate burden of introducing such evidence without prompting from the IJ." Wei Sun, 883 F.3d at 31. Therefore, the agency did not err in concluding that Yan failed to satisfy her burden of proof with reliable evidence corroborating her church attendance and proselytizing or her assertion that authorities had discovered those activities. See 8 U.S.C. § 1158(b)(1)(B)(ii); Wei Sun, 883 F.3d at 28.
The IJ also did not err in determining that, even assuming Yan is a practicing Christian, she failed to establish "systemic or pervasive" persecution of similarly situated Christians sufficient to demonstrate a pattern or practice of persecution in China because, despite evidence that Chinese officials restrict religious activities and harass and persecute practitioners in some areas of China, in other areas, millions of Christians practice their religion without government interference. In re A-M-, 23 I. &N. Dec. 737, 741 (B.I.A. 2005); see 8 C.F.R. § 1208.13(b)(2)(iii).
Accordingly, because Yan did not adequately corroborate her claim that she would be singled out for persecution or show a pattern or practice of persecution, the agency did not err in finding that she failed to satisfy her burden of establishing a well-founded fear of persecution. See 8 U.S.C. § 1158(b)(1)(B)(ii); Wei Sun, 883 F.3d at 28. That finding was dispositive of asylum, withholding of removal, and CAT relief because all three claims were based on the same factual predicate. See 8 C.F.R. §§ 1208.13(b), 1208.16(b); Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.