Ming Jin Chen-Sie v. Holder , 423 F. App'x 81 ( 2011 )

10-1189-ag
Chen-Sie v. Holder
BIA
Laforest, IJ
A200 125 881
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 1st day of June, two thousand eleven.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 Ming Jin Chen-Sie,
14 Petitioner,
15
16 v. 10-1189-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: John Z. Zhang, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Linda S. Wernery, Assistant
27 Director; Kerry A. Monaco, Trial
28 Attorney, Office of Immigration
29 Litigation, Civil Division, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DISMISSED in part and DENIED in part.
5 Petitioner Ming Jin Chen-Sie, a native and citizen of
6 China, seeks review of a March 4, 2010 decision of the BIA
7 affirming the June 23, 2008 decision of Immigration Judge
8 (“IJ”) Brigitte Laforest denying Chen-Sie’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Ming Jin Chen-
11 Sie, No. A200 125 881 (B.I.A. Mar. 4, 2010), aff’g No. A200
12 125 881 (Immig. Ct. N.Y. City June 23, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
20 510, 513 (2d Cir. 2009).
21 As a preliminary matter, under 8 U.S.C. § 1252(d)(1),
22 this Court “may review a final order of removal only if
23 . . . the alien has exhausted all administrative remedies
2
1 available to the alien as of right[.]” This jurisdictional
2 rule is absolute with respect to the requirement that on
3 appeal to the BIA the alien must raise each category of
4 relief subsequently raised in this Court. See Karaj v.
5 Gonzales, 462 F.3d 113, 119 (2d Cir. 2006). In this case,
6 Chen-Sie failed to challenge the IJ’s denial of CAT relief
7 in his appeal to the BIA. Thus, as a statutory matter, we
8 are without jurisdiction to consider any challenge to the
9 denial of that relief, and the petition is dismissed to this
10 extent. 8 U.S.C. § 1252(d)(1).
11 As to asylum and withholding of removal, substantial
12 evidence supports the agency’s conclusion that Chen-Sie
13 failed to demonstrate a well-founded fear of future
14 persecution. As the agency reasonably noted, it is
15 speculative whether Chen-Sie will ever become a priest or
16 missionary as he has not undergone any religious education.
17 Indeed, Chen-Sie testified that: he did not preach because
18 of his educational level; he needed many more years of
19 education and training before he could be a priest; his
20 fellow church members did not believe he would become a
21 priest because of his limited education; and until he
22 becomes a priest the “[o]nly thing [he] can do is to become
23 a sincerely [sic] follower.” Accordingly, the agency did
3
1 not err in finding that he did not have a well-founded fear
2 of persecution because his claim that he might be persecuted
3 if he ever became a priest or missionary was too
4 speculative. See Jian Xing Huang v. INS, 421 F.3d 125, 129
5 (2d Cir. 2005) (finding that an asylum applicant could not
6 base a well-founded fear that he might be subjected to
7 persecution on his desire to have more children in violation
8 of China’s family planning policy because the fear was
9 “speculative”); Lecaj v. Holder, 616 F.3d 111, 117
10 (2d Cir. 2010) (finding that a “speculative” anxiety does
11 not make a fear of future persecution objectively
12 reasonable).
13 Chen-Sie also argues that the agency erred by failing
14 to consider his evidence of country conditions,
15 demonstrating that some Christians who preached outside of
16 the state-sanctioned churches were detained, criminally
17 charged, and tortured. However, a reasonable fact-finder
18 would not be compelled to conclude that the agency ignored
19 any material evidence. See Jian Hui Shao v. Mukasey, 546
20 F.3d 138, 169 (2d Cir. 2008) (recognizing that the Court has
21 rejected the notion that the agency must “expressly parse or
22 refute on the record each individual argument or piece of
23 evidence offered by the petitioner”); see also Xiao Ji Chen
4
1 v. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)
2 (presuming that the agency “has taken into account all of
3 the evidence before [it], unless the record compellingly
4 suggests otherwise”). To the contrary, as discussed above,
5 the agency based its decision on its finding that it was too
6 speculative that Chen-Sie would become a missionary or
7 preacher in China, not on a finding that such individuals
8 were never subjected to persecution. Moreover, the agency
9 reasonably noted that Chen-Sie testified that members of his
10 family practiced Christianity without any problems in China.
11 The agency also did not err in finding that Chen-Sie
12 did not meet his burden of proof because he did not provide
13 evidence corroborating his testimony that he was involved in
14 a church in the United States. “[T]he REAL ID Act
15 emphasizes the importance of corroborating evidence” in
16 determining whether an applicant has met his burden of
17 proof, and an IJ may properly deny an applicant’s claim for
18 failure to provide corroborating evidence where such
19 evidence can reasonably be obtained. Chuilu Liu v. Holder,
20 575 F.3d 193, 197, 198 (2d Cir. 2009); see also 8 U.S.C.
21 § 1158(b)(1)(B)(ii). Before the agency, Chen-Sie contended
22 that he could not reasonably provide corroborating evidence
23 from his church in the United States or people who attended
5
1 it with him because: he had not yet been baptized; the
2 people in his church did not believe he would become a
3 priest; and many asylum applications were fabricated.
4 However, those reasons do not compel the conclusion that
5 corroborating evidence was unavailable. See 8 U.S.C.
6 § 1252(b)(4) (“No court shall reverse a determination made
7 by a trier of fact with respect to the availability of
8 corroborating evidence . . . unless the court finds . . .
9 that a reasonable trier of fact is compelled to conclude
10 that such corroborating evidence is unavailable.”); cf.
11 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)
12 (providing that the agency need not credit an applicant’s
13 explanations unless a reasonable fact-finder would be
14 compelled to do so). Because the agency required only
15 confirmation that Chen-Sie attended church, the agency did
16 not err in finding that Chen-Sie failed to meet his burden
17 of proof given his testimony that he attended church
18 regularly, participated in religious education classes, and
19 handed out fliers for the church. See 8 U.S.C.
20 § 1158(b)(1)(B)(ii).
21 Accordingly, because Chen-Sie’s fear of future
22 persecution on account of his desire to become a priest was
23 speculative, see Jian Xing Huang, 421 F.3d at 129, and
6
1 because the agency did not err in finding that he failed to
2 corroborate his testimony, see Chuilu Liu, 575 F.3d at 197-
3 98, the agency did not err in denying his application for
4 asylum. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178
5 (2d Cir. 2004) (providing that an applicant for asylum must
6 establish that his fear is objectively reasonable). As
7 Chen-Sie was unable to meet his burden for asylum he
8 necessarily failed to meet the higher burden required to
9 succeed on a claim for withholding of removal. See Paul v.
10 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Gomez v. INS,
11 947 F.2d 660, 665 (2d Cir. 1991).
12 For the foregoing reasons, the petition for review is
13 DISMISSED in part and DENIED in part.
14
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
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