Chen v. Sessions ( 2018 )

16-3360
Chen v. Sessions
BIA
Bukszpan, IJ
A087 787 770
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.
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 9th day of October, two thousand eighteen.
PRESENT:
REENA RAGGI,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________
ZHAOYI CHEN,
Petitioner,
v. 16-3360
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Farah Loftus, Los Angeles, CA.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Keith I.
McManus, Assistant Director; Juria
L. Jones, 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 DISMISSED in part and DENIED in part.
Petitioner Zhaoyi Chen, a native and citizen of the
People’s Republic of China, seeks review of a BIA decision
affirming an Immigration Judge’s (“IJ”) denial of her claims
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Zhaoyi Chen, No.
A087 787 770 (B.I.A. Sept. 2, 2016), aff’g No. A087 787 770
(Immig. Ct. N.Y. City Mar. 2, 2015). Under the circumstances
of this case, we review the IJ’s and the BIA’s decisions “for
the sake of completeness,” Wangchuck v. Dep’t of Homeland
Sec., 448 F.3d 524, 528 (2d Cir. 2006), applying well-
established standards of review, see 8 U.S.C. §
1254(b)(4)(B); Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008)
(reviewing questions of law and application of law to
undisputed fact de novo). In so doing, we assume the parties’
familiarity with the underlying facts and procedural history
in this case.
2
Asylum
Title 8 U.S.C § 1158(a)(3) states that no court shall
have jurisdiction to review the agency's finding that an
asylum application was untimely under 8 U.S.C. §
1158(a)(2)(B). Notwithstanding that provision, federal courts
retain jurisdiction to review “constitutional claims” and
“questions of law.” 8 U.S.C. § 1252(a)(2)(D). Here, Chen
does not address the jurisdictional bar, but asserts that the
documents and testimony she offered to the IJ constituted
“clear and convincing evidence as to the date of her arrival
into the [U]nited States.” Petitioner Br. 7. As her
argument merely “disputes the correctness of [the] IJ's fact-
finding or the wisdom of his exercise of discretion and raises
neither a constitutional claim nor a question of law,” we
lack jurisdiction to review it. Barco-Sandoval v. Gonzales,
516 F.3d 35, 40 (2d Cir. 2008); see Ilyas Khan v. Gonzales,
495 F.3d 31, 35 (2d Cir.2007) (explaining that this court's
“analysis of whether a petition presents reviewable claims
focuses on the nature of the claims raised and not on the
merits of those claims”). To the extent Chen raises a due
process claim by arguing that the IJ did not “allow” her
cousin to testify, Petitioner Br. 5, the record is to the
3
contrary. See Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.
2007) (“To establish a violation of due process, an alien
must show that she was denied a full and fair opportunity to
present her claims or that the IJ or BIA otherwise deprived
her of fundamental fairness.” (internal quotation marks
omitted)). At the hearing, Chen’s counsel represented that
the cousin would “testify in accordance with his [written]
statement,” so his live testimony was unnecessary. C.A.R.
110. Accordingly, because the IJ did not deny Chen an
opportunity to present witnesses, we reject her
constitutional challenge, and dismiss the petition to the
extent it seeks review of the denial of asylum relief.
Withholding of Removal and CAT Relief
To qualify for withholding of removal, an applicant must
demonstrate that her “life or freedom would be threatened in
[the] country [of removal]” on the basis of “race, religion,
nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A); see 8 C.F.R.
§ 208.16(b); Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d
332, 339 (2d Cir.2006). An applicant bears the burden of
demonstrating past persecution or a likelihood of future
persecution in order to establish eligibility for withholding
4
of removal. See 8 C.F.R. § 1208.16(b), (c)(2); Mufied v.
Mukasey, 508 F.3d 88, 91 (2d Cir. 2007). Where, as 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). Before
denying a claim for insufficient corroboration, an IJ should
“point to specific pieces of missing, relevant documentation
and show that this documentation was reasonably available,”
provide the alien “an opportunity to explain the omission,”
and “assess any explanation that is given.” Chuilu Liu v.
Holder, 575 F.3d at 198 (internal quotations marks,
citations, and alterations omitted).
The agency found that Chen (1) failed to provide
sufficient corroborating evidence of past persecution, and
(2) did not establish that she will more likely than not be
subject to future persecution in China on account of her
religion.
In challenging these determinations here, Chen states
only that she was “detained, beaten, and tortured by the
police in China and she is afraid that if she is forced to
5
return to China she will be jailed and tortured again because
of her religion.” Petitioner Br. 14. As Chen does not
meaningfully challenge either basis for denying her
eligibility for withholding of removal, she has forfeited any
such challenge. See Chuilu Liu v. Holder, 575 F.3d at 195
(deeming argument forfeited where petitioner’s brief on
appeal did not mention CAT relief); Yueqing Zhang v. Gonzales,
426 F.3d 540, 545 n.7 (2d Cir. 2005) (holding claim for relief
abandoned where a petitioner “devote[d] only a single
conclusory sentence to the argument”).
In any event, the agency did not err in concluding that
Chen failed to provide reasonably available corroborating
evidence. Chen testified that she required medical treatment
after her detention, but failed to ask her family to obtain
records from the clinic she visited. See Chuilu Liu, 575
F.3d at 198 (“[T]he alien bears the ultimate burden of
introducing such evidence without prompting from the IJ.”).
The IJ’s finding that such records were reasonably available
was reinforced by Chen’s production of other medical records
in support of her contention that she entered the United
States in May 2009. The agency did not err in declining to
credit statements from Chen’s family and friend because they
6
were prepared for Chen’s removal proceedings and were written
by individuals who were not made available for cross-
examination. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
2013) (deferring to agency decision to afford little weight
to petitioner’s husband’s unsworn letter); see also In re H-
L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (finding
letters from friends and family insufficient to support
alien’s claims because authors were interested witnesses not
subject to cross-examination), overruled on other grounds by
Hui Lin Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012).
Furthermore, the agency reasonably found that the country
conditions evidence did not demonstrate a pattern or practice
of persecution of similarly situated Catholics so as to
corroborate Chen’s claimed fear of future persecution. The
country conditions evidence reflects local variation in
China’s treatment of Christians, and shows no persecution of
Christians in Chen’s home region. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 1489-4950, 165-66 (2d Cir. 2008)
(upholding BIA’s no well-founded fear of future persecution
determination where enforcement of policy at issue varied by
region, and petitioner did not show enforcement in home region
amounting to persecution).
7
Accordingly, the agency did not err in finding that Chen
failed to satisfy her burden of establishing past persecution
or a likelihood of future persecution on account of her
religion. That finding is dispositive of CAT relief because
both claims 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
DISMISSED in part and DENIED in part. As we have completed
our review, any stay of removal that the Court previously
granted in this petition is VACATED, and any pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
8