Leng v. Mukasey, (2d Cir. June 6, 2008)

To establish a well-founded fear of persecution in the absence of any evidence of past persecution, an applicant must make some showing that authorities in his home country are either aware of his activities or are likely to become aware of his activities. The IJ did not make any finding as to whether any other evidence supports Petitioner's claim that the Chinese government was aware of his political activities. We remand this matter for the limited purpose of allowing the IJ to consider whether the Chinese government was aware of or was likely to become aware of Petitioner's political activities after his arrival in the U.S.

Petitioner, a citizen of the People's Republic of China, sought asylum, withholding of removal and Convention Against Torture (CAT) relief based on his political activities after his arrival in the United States. Petitioner claimed that he had become involved with the China Democratic Party (CDP) and that his wife and child who had remained in China had been harassed by the authorities as a result. He stated that he feared he would be harmed or mistreated if he returned to China. Although Petitioner entered the United States in 1995, he did not apply for asylum until 2004. He claimed that he did not apply for asylum sooner because he did not become involved with the political group until 2002 and also had major surgery in 2002. Petitioner claimed that he published an article on the website of the CDP and also participated in protests. He stated that he was "sure" that the authorities in China knew about his political activities. Notwithstanding this fear, Petitioner had applied for renewal of his Chinese passport on two occasions, the latest in 2004. Documents submitted in support of his claim included pictures of Petitioner at political rallies and a statement by the Executive Chairman of the China Democratic Party Organization Development Center, who also testified at the hearing.

The immigration judge found Petitioner was not credible. She based her decision on discrepancies between Petitioner's testimony and that of the Chairman of the CDP on the issue of when Petitioner became a member of the party. The IJ also relied on the fact that Petitioner had applied in 1999 and 2004 to renew his passport at the Chinese Consulate in New York. The IJ also found that Petitioner failed to establish that he qualified for an exception to the one-year deadline, finding that his 2002 surgery did not justify his failure to apply until 2004. The IJ held that Petitioner did not establish that he would be subjected to future persecution if forced to return to China. The BIA adopted and affirmed the IJ's decision. The BIA found that the IJ's credibility determination was supported by substantial evidence and that Petitioner failed to adequately explain why he waited until 2004 to apply for asylum. The BIA also agreed with the IJ that even if the asylum application had been timely filed, Petitioner failed to show past persecution or a well-founded fear.

On review, the Second Circuit held that it lacked jurisdiction to consider the timeliness of Petitioner's asylum claim because Petitioner failed to raise a constitutional claim or a question of law. The court noted that Petitioner used the rhetoric of a constitutional claim to disguise a quarrel over fact-finding.

The court upheld the IJ's adverse credibility fining. The court noted that the IJ based her decision on several perceived problems with Petitioner's testimony. For example, Petitioner claimed that he joined the CDP in 2002, but the documentation suggested that it was 2004, giving the implication that he manufactured his political activity to support his asylum claim. Additionally, Petitioner claimed he feared persecution by the Chinese authorities, but went to the Chinese consulate to renew his passport in 2004. The court also found discrepancies in the testimony and documentation submitted regarding his wife's arrest in China. The court held that these discrepancies taken together provided more than ample support for the IJ's finding that Petitioner's testimony was neither credible nor plausible.

Lastly, the court held that to establish the requisite fear of future harm, an applicant must make a showing that the authorities in his country of nationality are either aware of his activities or are likely to become aware of his activities. The court faulted the IJ for not making a specific finding as to whether any evidence, other than Petitioner's non-credible testimony, supported Petitioner's claim that the Chinese government was aware or could become aware of his political activities in the United States. For this reason, the court remanded the matter back to the IJ for the "very limited purpose" of allowing the IJ to consider whether the Chinese authorities were (1) aware or (2) likely to become aware of Petitioner's activities.

The petition for review was dismissed in part and granted in part.