Cicek v. Sessions ( 2018 )

16-2982
Cicek v. Sessions
BIA
Poczter, IJ
A097 515 600
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 22nd day of May, two thousand eighteen.
PRESENT:
RALPH K. WINTER,
DENNIS JACOBS,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
YALCIN CICEK,
Petitioner,
v. 16-2982
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Joshua Bardavid, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Douglas E.
Ginsburg, Assistant Director;
Jenny C. Lee, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
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 Yalcin Cicek, a native and citizen of Turkey,
seeks review of a July 29, 2016, decision of the BIA affirming
an April 10, 2015, decision of an Immigration Judge (“IJ”)
denying him withholding of removal and relief under the
Convention Against Torture (“CAT”). In re Yalcin Cicek, No.
A097 515 600 (B.I.A. July 29, 2016), aff’g No. A097 515 600
(Immig. Ct. N.Y. City Apr. 10, 2015). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA, i.e., minus the
alternative burden finding that was not considered by the
BIA. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
522 (2d Cir. 2005). The applicable standards of review are
well established. See 8 U.S.C. § 1252(b)(4)(B); see also
Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir. 2009).
The agency did not err in finding that Cicek failed to
satisfy his burden of corroborating that he is Alevi and
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that he suffered and is likely to suffer harm in Turkey on
that account.
“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
id. § 1231(b)(3)(C); see also Chuilu Liu, 575 F.3d at 196-
97. However, “[w]here 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). Cicek does not challenge the decision
to require corroboration, but rather argues that the
corroborating evidence he did submit was sufficient.
We disagree. The agency did not err in concluding that
Cicek failed to provide reasonably available, reliable
evidence that he is of the Alevi faith and that he and his
family suffered physical attacks and harassment on that
account. As an initial matter, the IJ did not err in
3
declining to credit unsworn statements from Cicek’s parents
because they were interested parties who were not available
for cross-examination. See Y.C. v. Holder, 741 F.3d 324,
334 (2d Cir. 2013). Contrary to Cicek’s contentions, the
IJ was not required to explain whether his parents’
testimony was available telephonically given that he bore
“the ultimate burden of introducing such evidence without
prompting from the IJ,” Chuilu Liu, 575 F.3d at 198, and
the IJ was permitted to consider his parents’ interest in
the outcome of his proceedings regardless of whether they
can legally benefit from a grant of asylum, see Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d
Cir. 2006) (holding that determination of the weight of
evidence is largely matter of agency discretion).
The IJ properly identified the missing evidence. As
the IJ noted, Cicek could have obtained more reliable
evidence that he is Alevi, such as statements or testimony
from Alevis that he is acquainted with in the United
States. Cicek also failed to submit reasonably available
evidence to support his testimony that he and his family
were beaten and harassed in Turkey. The IJ was not
required to credit Cicek’s unresponsive explanation that he
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did not provide a statement or testimony from his uncle who
lives in the United States because his uncle arrived in the
United States after him or his statement that his uncle
“may come” if he is wanted. See Majidi v. Gonzales, 430
F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than
offer a plausible explanation for his inconsistent
statements to secure relief; he must demonstrate that a
reasonable fact-finder would be compelled to credit his
testimony.” (internal quotation marks omitted)). Nor did
the IJ err in rejecting Cicek’s attempts to explain his
failure to provide a statement from his brother who is
seeking asylum on similar grounds in the United Kingdom
because Cicek first stated that he does not speak to his
brother, but later testified inconsistently that he could
not ask his brother for a statement given that his brother
asks him for money all the time. See id.
Accordingly, the agency did not err in finding that
Cicek failed to satisfy his burden of demonstrating past
persecution or a likelihood of persecution or torture on
account of his religion. See 8 U.S.C.
§§ 1158(b)(1)(B)(ii), 1231(b)(3)(C). That finding is
dispositive of withholding of removal and CAT relief
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because those forms of relief were based on the same
factual predicate. See Paul v. Gonzales, 444 F.3d 148,
156-57 (2d Cir. 2006).*
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
* Contrary to the BIA’s conclusion, Cicek’s challenge to
the IJ’s denial of withholding of removal necessarily
challenged the denial of CAT relief because the IJ denied
both forms of relief based on Cicek’s failure to
corroborate.
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