Wang v. Sessions ( 2018 )

17-3048
Wang v. Sessions
BIA
Laforest, IJ
A206 091 118
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 31st day of July, two thousand eighteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 XICAI WANG,
14 Petitioner,
15
16 v. 17-3048
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lee Ratner, Law Office of John S.
24 Yong, New York, NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Anthony P.
28 Nicastro, Assistant Director;
29 Sherease Pratt, Senior Litigation
30 Counsel, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 DC.
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 DENIED.
5 Petitioner Xicai Wang, a native and citizen of the
6 People’s Republic of China, seeks review of a September 8,
7 2017, decision of the BIA affirming a February 7, 2017,
8 decision of an Immigration Judge (“IJ”) denying Wang’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Xicai
11 Wang, No. A 206 091 118 (B.I.A. Sept. 8, 2017), aff’g No. A
12 206 091 118 (Immig. Ct. N.Y. City Feb. 7, 2017). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. Gertsenshteyn
17 v. U.S. Dep’t of Justice, 544 F.3d 137, 142 (2d Cir. 2008).
18 We review the agency’s corroboration decision for substantial
19 evidence and the BIA’s denial of remand for abuse of
20 discretion. 8 U.S.C. § 1252(b)(4); Kyaw Zwar Tun v. U.S.
21 INS, 445 F.3d 554, 563 (2d Cir. 2006) (applying substantial
2
1 evidence standard to corroboration finding); Li Yong Cao v.
2 U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir. 2005)
3 (reviewing BIA’s denial of remand under abuse of discretion
4 standard).
5 I. Corroboration
6 Under the REAL ID Act, an IJ may require an asylum
7 applicant to provide evidence that corroborates otherwise
8 credible testimony in order to meet the applicant’s burden
9 of proof for asylum. 8 U.S.C. § 1158(b)(1)(B)(ii). “[A]
10 failure to corroborate can suffice, without more, to
11 support a finding that an alien has not met his burden of
12 proof.” Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5 (2d
13 Cir. 2009); see also Matter of L-A-C-, 26 I. & N. Dec. 516,
14 519 (B.I.A. 2015) (holding that “regardless of whether an
15 applicant is deemed credible, he has the burden to
16 corroborate the material elements of the claim where the
17 evidence is reasonably obtainable”). When an IJ determines
18 that corroborating evidence is necessary, the applicant
19 must provide the evidence “unless the applicant does not
20 have the evidence and cannot reasonably obtain the
21 evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). But the agency
3
1 must identify what evidence should have been provided and
2 assess any explanation for the missing evidence. Chuilu
3 Liu, 575 F.3d at 198-99. We will reverse the agency’s
4 decision only if “a reasonable trier of fact is compelled
5 to conclude that such corroborating evidence is
6 unavailable.” 8 U.S.C. § 1252(b)(4).
7 Contrary to Wang’s position, the agency had the
8 discretion to discount his mother’s letter because she was
9 an interested witness who was not available for cross
10 examination. See Y.C. v. Holder, 741 F.3d 325, 334 (2d
11 Cir. 2013) (deferring to agency’s decision to give limited
12 weight to letter from applicant’s spouse in China). And
13 aside from this letter, Wang did not provide any evidence
14 to corroborate events in China. The IJ identified the
15 missing evidence: medical records documenting the treatment
16 Wang received for injuries sustained during his detention;
17 documentation of his employment and termination (he claimed
18 he was fired from his construction job after his
19 detention); and a letter from the friend who introduced him
20 to the underground Catholic church, or other evidence of
21 his church attendance in China. The transcript reflects
4
1 that Wang was questioned about the absence of this evidence
2 at the hearing.
3 Wang argues that he sufficiently explained that the
4 evidence was unavailable. He testified that he lost the
5 documentation of his employment and did not receive any
6 written notice of his termination; he did not have medical
7 records because he was treated at a small private clinic that
8 did not keep any records; and he was not able to obtain a
9 letter from the friend who introduced him to the underground
10 church because this friend had fled China and Wang did not
11 know where he was. The record reflects that the BIA and IJ
12 considered and rejected these explanations. And Wang’s
13 explanations do not compel a finding that the evidence was
14 unavailable, especially because Wang and his mother did not
15 describe any attempts to obtain the requested evidence. 8
16 U.S.C. § 1252(b)(4).
17 The burden of proof determination is dispositive of
18 asylum, withholding of removal and CAT relief. See Lecaj v.
19 Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).1
1 Wang does not challenge the denial of relief based on his
5
1 II. Remand
2 On appeal to the BIA, Wang submitted a short letter from
3 his Catholic church in China stating that he was a member of
4 the church, as well as a letter from a church friend
5 describing Wang’s participation in the church and his arrest
6 and detention. The BIA did not abuse its discretion in
7 declining to remand.
8 A motion to remand based on new evidence is subject to
9 the same rules as a motion to reopen, and thus a movant’s
10 failure to proffer previously unavailable evidence is a
11 permissible ground for denying remand. 8 C.F.R.
12 § 1003.2(c)(1) (requiring evidence that is new and
13 previously unavailable); Li Yong Cao, 421 F.3d at 156.
14 Wang’s friend explained in his letter that he had been
15 living in hiding and was not in touch with Wang at the time
16 of the hearing, but had recently moved back to his hometown
17 and resumed contact with Wang. The BIA was not required to
18 credit the explanation given the suspicious timing and the
practice of Catholicism in the United States. See Yueqing
Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005)
(providing that issues not raised in an opening brief are
waived).
6
1 lack of detail about why Wang’s friend returned to his
2 hometown after spending years in hiding and how Wang and
3 his friend got back in touch with one another. See 8
4 U.S.C. § 1252(b)(4); cf. Majidi v. Gonzales, 430 F.3d 77,
5 80-81 (2d Cir. 2005) (holding that in credibility context,
6 applicant’s explanations for inconsistent statements must
7 be compelling rather than merely plausible). The BIA also
8 reasonably found that because the church had more than 20
9 members and Wang did not explain why he could not obtain a
10 letter from anyone else at the church, he did not establish
11 that the information conveyed in the letters was previously
12 unavailable.
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, Wang’s pending
15 motion for a stay of removal is DENIED as moot. Any pending
16 request for oral argument in this petition is DENIED in
17 accordance with Federal Rule of Appellate Procedure 34(a)(2),
18 and Second Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe,
21 Clerk of Court
7