Y.C. v. Holder

• Decision Date: 18 December 2013
• Docket Number: Docket Nos. 11–2749–ag, 11–3217–ag.
• Citation: 741 F.3d 324
• Parties: Y.C., Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent. X.W., Petitioner, v. Eric H. Holder, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

741 F.3d 324

Y.C., Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

X.W., Petitioner,

v.Eric H. Holder, Jr., United States Attorney General, Respondent.^*

Docket Nos. 11–2749–ag, 11–3217–ag.

United States Court of Appeals, Second Circuit.

Argued: April 29, 2013.

Decided: Dec. 18, 2013.

Thomas V. Massucci, New York, NY, for Petitioner Y.C., No. 11–2749–ag.

Russell J.E. Verby, Senior Litigation Counsel, Office of Immigration Litigation (Tony West, Assistant Attorney General, Civil Division, and Kristin A. Moresi, Trial Attorney, Office of Immigration Litigation, on the brief), United States Department of Justice, Washington, D.C., for Respondent, in No. 11–2749–ag.

Gang Zhou, New York, NY, for Petitioner X.W., in No. 11–3217–ag.

Russell J.E. Verby, Senior Litigation Counsel, Office of Immigration Litigation (Tony West, Assistant Attorney General, Civil Division, Luis E. Perez, Senior Litigation Counsel, and Remi da Rocha–Afodu, Attorney, Office of Immigration Litigation, on the brief), United States Department of Justice, Washington, D.C., for Respondent, No. 11–3217–ag.

Before: JACOBS and SACK, Circuit Judges, and RAKOFF, District Judge. ^**

SACK, Circuit Judge:

Petitioner Y.C. seeks review of a 2011 order of the Board of Immigration Appeals (“BIA”) affirming a 2009 decision of Immigration Judge (“IJ”) Sandy K. Hom, which denied Y.C.'s application for asylum, withholding of removal, and relief under the Convention Against Torture, Dec. 10, 1984, S. Treaty Doc. No. 100–20 (1988) (“CAT”). Petitioner X.W. seeks review of a 2011 order of the BIA affirming a 2009 decision of IJ Alan Vomacka, which pretermitted X.W.'s application for asylum and denied his application for withholding of removal and CAT relief. Both petitioners premised their applications on pro-democracy activities in which they engaged after arriving in the United States, including the publication of articles criticizing the Chinese government. Although both petitioners assert that they revealed their participation in pro-democracy organizations on the Internet, neither adduced sufficient evidence that Chinese authorities are aware or likely to become aware of their political activities in the United States or that they will in any event be persecuted on that basis. Y.C.'s petition for review is therefore denied in its entirety; X.W.'s petition for review is denied in part and dismissed in part.

BACKGROUND

Y.C.

Y.C., a native and citizen of the People's Republic of China and of Korean descent, entered the United States in December 2003. In November 2004, she filed an application for asylum, withholding of removal, and CAT relief on the basis of her political opinion. At a hearing in March 2005, before IJ Hom, Y.C. testified to the following effect: She was terminated from her accounting job in China for “whistle blowing,” after asserting the misuse of company funds. Afterward, she was unable to find new employment. She left China for the United States in November 2003. Upon her arrival here, she joined the Chinese Alliance for Democracy ¹ (“CAD”), which is described as a democratic association opposed to communism. Y.C. testified that she performed volunteer secretarial work for the CAD. She further stated that her husband, who remains in China, was visited by Chinese authorities who advised him to tell Y.C. to stop working for the CAD. In further support of her application, Y.C. submitted, among other things, a copy of an article she wrote for the November 2004 issue of Beijing Spring, a CAD publication. The article is a brief editorial recounting her escape from China and subsequent membership in the Chinese pro-democracy movement. Y.C. did not present any corroborating evidence from her husband or from fellow CAD members familiar with her pro-democracy activities in the United States.

In an oral decision, IJ Hom denied Y.C.'s application for asylum, withholding of removal, and CAT relief. The IJ found that any harassment Y.C. endured in China arose from an employment dispute and did not rise to the level of persecution on the basis of a protected ground. The IJ also concluded that Y.C. failed to demonstrate an objectively reasonable well-founded fear of future persecution on the basis of her pro-democracy activities in the United States, noting that she had offered only scant, general testimony in support of this claim.

Y.C. appealed to the BIA, which, in 2006, affirmed the IJ's decision without opinion. In February 2008, this Court granted Y.C.'s first petition for review and remanded the case to the BIA. We found no error in the IJ's denial of Y.C.'s past persecution claim, but concluded that the IJ failed to address Y.C.'s claim that she feared future persecution on the basis of the Beijing Spring article. On remand, the BIA vacated its prior decision affirming the IJ's decision and remanded the case to the IJ to consider Y.C.'s claim of future persecution based on her pro-democracy activities in the United States.

On remand, Y.C. submitted the following documentary evidence: (1) a letter dated September 1, 2004, from the CAD attesting that she had been a member of the organization since July 2004, that she volunteered at one of the organization's departments, and that she published articles in Beijing Spring; and (2) a letter dated January 28, 2009, from her husband stating that local public security officers had visited his home in China eight times since 2005, informing him that they were aware of Y.C.'s pro-democracy activities in the United States and instructing him to tell her to stop or she will be punished upon her return to China.

At a hearing in February 2009, Y.C. appeared before IJ Hom to supplement the record with respect to her future persecution asylum claim.² Y.C. testified that she assisted the CAD by typing, filing, and cleaning. She attended CAD meetings and participated in candlelight vigils in front of the Chinese Embassy in New York.

Y.C. repeated her previous testimony that she published one editorial in Beijing Spring and that her husband informed her that local authorities in China were aware of her pro-democracy activities in the United States. Y.C. acknowledged that the article she wrote did not include her husband's name or the city where he lived, and she conceded that she does not know whether the magazine is circulated in China, much less how Chinese authorities would have discovered that she wrote the article. Y.C. asserted, however, that the Chinese government knows “all the names.”

In March 2009, the IJ again denied Y.C.'s application for asylum, withholding of removal, and CAT relief. The IJ gave little evidentiary weight to the letters from the CAD and Y.C.'s husband because they were not given under oath and because they lacked evidence of authenticity. The IJ also faulted Y.C. for failing to present any evidence corroborating her pro-democracy activities in the United States, particularly because the CAD is headquartered in New York City and a fellow CAD member or participant in the candlelight vigils might have appeared or submitted a sworn affidavit with ease. The IJ also thought significant the fact that Y.C. did not know whether Beijing Spring was circulated in China. Accordingly, the IJ concluded that Y.C. had not satisfied her burden of proof for either asylum or withholding of removal, and, because she had not offered any evidence that she would be tortured in China, had failed to establish eligibility for CAT relief.

Y.C. appealed to the BIA, which, in June 2011, dismissed her appeal. The BIA concluded that Y.C. had not established that she is affiliated with an organization that is banned in China, or that the Chinese authorities have any concerns directed at CAD members. The BIA determined that, even if the CAD were a banned organization, Y.C. had not demonstrated that the authorities in China were aware or likely to become aware of her involvement in the organization. Specifically, the BIA determined that there was no evidence heat her brief editorial was ever circulated in China or posted on the Internet in a manner that Chinese authorities could access it. Furthermore, the BIA reasoned, Y.C.'s claim that she participated in annual candlelight vigils at the Chinese embassy was insufficient to show that the Chinese government could identify her or would attempt to target her.

The BIA further concluded that, even if the Chinese government were aware of Y.C.'s pro-democracy activities, there was no evidence in the record establishing how the government would view her activities in the United States, or that it would treat her similarly to political dissidents who carry out their activities in China. The BIA therefore agreed that Y.C. had failed to meet the evidentiary burden for asylum and withholding of removal relief, and that she had not demonstrated eligibility for CAT relief.

X.W.

X.W., a native and citizen of the People's Republic of China, entered the United States in November 2003 and, in June 2008, filed an application for asylum, withholding of removal, and CAT relief, on the basis of his political opinion. In a written statement attached to his application, X.W. asserted that he had been arrested, detained for 15 days, beaten and kicked in the stomach, and fined in June 2001 because he protested the local government's denial of disaster assistance after a typhoon destroyed his family's home and crops. Additionally, X.W. stated that, if returned, he feared he would be persecuted for his current and active membership in the Chinese Democracy Party (“CDP”), which operates in the United States.

At a hearing in August 2009 before IJ Vomacka, X.W. testified that he joined the CDP in June 2007. Since then, he has participated in many pro-democracy demonstrations, including protests in front of the United Nations and the Chinese Embassy. He also assisted with the CDP's recruitment efforts by stuffing envelopes with pre-printed CDP propaganda,...