Lin v. Garland ( 2021 )

19-2077
Lin v. Garland
BIA
Wilson, IJ
A099 835 069
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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of September, two thousand twenty-one.
5
6 PRESENT:
7 DENNIS JACOBS,
8 GUIDO CALABRESI,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 WEN TONG LIN,
14 Petitioner,
15
16 v. 19-2077
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Adedayo O. Idowu, Esq., New York,
24 NY.
25
26 FOR RESPONDENT: Brian Boynton, Acting Assistant
27 Attorney General; Timothy G.
28 Hayes, Senior Litigation Counsel;
1 Sunah Lee, Trial Attorney, Office
2 of Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Wen Tong Lin, a native and citizen of the
10 People’s Republic of China, seeks review of a June 13,
11 2019, decision of the BIA affirming a January 2, 2018,
12 decision of an Immigration Judge (“IJ”) denying asylum,
13 withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Wen Tong Lin, No. A099 835
15 069 (B.I.A. June 13, 2019), aff’g No. A099 835 069 (Immig.
16 Ct. N.Y. City Jan. 2, 2018). We assume the parties’
17 familiarity with the underlying facts and procedural
18 history.
19 We have reviewed the IJ’s decision as modified by the
20 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
21 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d
22 268, 271 (2d Cir. 2005). An applicant for asylum,
23 withholding of removal, and CAT protection bears the burden
2
1 of proof to establish eligibility. See 8 U.S.C.
2 §§ 1158(b)(1)(B)(i), 1231(b)(3)(C); 8 C.F.R. §
3 1208.16(c)(2). “The testimony of the applicant may be
4 sufficient to sustain the applicant’s burden without
5 corroboration, but only if the applicant satisfies the
6 trier of fact that the applicant’s testimony is credible,
7 is persuasive, and refers to specific facts sufficient to
8 demonstrate that the applicant is a refugee.”
9 8 U.S.C. § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C);
10 8 C.F.R. § 1208.16(c)(2); Wei Sun v. Sessions, 883 F.3d 23,
11 28 (2d Cir. 2018). “In determining whether the applicant
12 has met [his] burden, the trier of fact may weigh the
13 credible testimony along with other evidence of record.
14 Where the trier of fact determines that the applicant
15 should provide evidence that corroborates otherwise
16 credible testimony, such evidence must be provided unless
17 the applicant does not have the evidence and cannot
18 reasonably obtain the evidence.” 8 U.S.C.
19 § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C).
20 Prior to denying a claim for lack of corroboration, an
21 IJ must “point to specific pieces of missing evidence and
3
1 show that it was reasonably available.” Wei Sun, 883 F.3d
2 at 31. We will reverse a corroboration finding only if “a
3 reasonable trier of fact is compelled to conclude that such
4 corroborating evidence is unavailable.”
5 8 U.S.C. § 1252(b)(4).
6 First, the IJ was allowed to require corroboration of
7 credible testimony and reasonably noted Lin’s
8 acknowledgement of false statements to consular officials
9 in concluding that corroboration was required. See
10 id. § 1158(b)(1)(B)(ii); Wei Sun, 883 F.3d at 28.
11 Second, the evidence Lin provided did not corroborate
12 his alleged past persecution because his school attendance
13 record did not show his expulsion and the letter from his
14 church did not mention his arrest and detention for
15 distributing Christian flyers. Lin also claimed that
16 police have continued to visit and threaten his parents,
17 but he did not provide a letter from his parents attesting
18 to that. Finally, Lin did not show that such evidence was
19 unavailable given that he received other evidence from
20 these sources.* That finding is dispositive of asylum,
* The BIA appears to have engaged in improper fact-finding by
4
1 withholding of removal, and CAT relief because all three
2 forms of relief were based on the same factual predicate.
3 See Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED
6 and stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
relying on Lin's failure to provide a letter from a classmate as
corroborating evidence, where the IJ made no finding that such a
letter was available as evidence. See 8 C.F.R. §
§ 1003.1(d)(3)(iv) (version in effect in June 2019). Remand to
correct this error would be futile given the other findings.
See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d
Cir. 2005) (“[W]e are not required to remand where there is no
realistic possibility that, absent the errors, the IJ or BIA
would have reached a different conclusion.”).
5