Chen v. Sessions ( 2018 )

16-3124
Chen v. Sessions
BIA
Hom, IJ
A200 919 329
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 5th day of October, two thousand eighteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 ROSEMARY S. POOLER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 XIAN YING CHEN,
14 Petitioner,
15
16 v. 16-3124
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 ____________________________________
22
23 FOR PETITIONER: G. Victoria Calle, Calle &
24 Associates, New York, NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Cindy S.
28 Ferrier, Assistant Director; Matt
29 A. Crapo, Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
33
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 Xian Ying Chen, a native and citizen of the
6 People’s Republic of China, seeks review of an August 12,
7 2016, decision of the BIA affirming an August 5, 2015,
8 decision of an Immigration Judge (“IJ”) denying Chen’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Xian
11 Ying Chen, No. A200 919 329 (B.I.A. Aug. 12, 2016), aff’g
12 No. A200 919 329 (Immig. Ct. N.Y. City Aug. 5, 2015). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 We have reviewed the IJ’s decision as modified by the
16 BIA and thus reach only the agency’s ruling that Chen failed
17 to meet her burden of proof. See Xue Hong Yang v. U.S.
18 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
19 applicable standards of review are well established. See
20 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
21 510, 513 (2d Cir. 2009).
22 An asylum applicant has the burden of proving
23 eligibility for relief. 8 U.S.C. § 1158(b)(1)(B)(i). While
2
1 an applicant can meet her burden of proof by credible
2 testimony alone in some circumstances, an IJ “may weigh the
3 credible testimony along with other evidence of record.”
4 Id. § 1158(b)(1)(B)(ii). “Where the trier of fact
5 determines that the applicant should provide evidence that
6 corroborates otherwise credible testimony, such evidence
7 must be provided unless the applicant does not have the
8 evidence and cannot reasonably obtain the evidence.” Id.;
9 see Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5 (2d Cir.
10 2009) (“[A] failure to corroborate can suffice, without
11 more, to support a finding that an alien has not met [her]
12 burden of proof.”). We cannot reverse the agency’s
13 corroboration finding unless a reasonable trier of fact
14 would be “compelled to conclude that such corroborating
15 evidence is unavailable.” 8 U.S.C. § 1252(b)(4).
16 Chen admitted that she had no documentary evidence to
17 support her claim and that she did not try to obtain any
18 such evidence. The agency reasonably concluded that Chen
19 failed to show that the evidence was unavailable because
20 Chen conceded that she made no attempt to obtain any medical
21 records. See 8 U.S.C. §§ 1158(b)(1)(B)(i), (ii),
22 1252(b)(4).
23
3
1 Chen speculates that records may not exist, asserting
2 that no court or government report has ever noted the
3 existence of documentary proof of a forced abortion under
4 China’s family planning policy. Her conjecture does not and
5 would not compel a reasonable trier of fact to conclude that
6 no medical evidence is available. See 8 U.S.C.
7 § 1252(b)(4). Nor does it explain why she failed to produce
8 records to support the other facets of her claim such as the
9 IUD requirement or routine IUD and pregnancy checks.
10 Chen nevertheless argues that the supporting statement
11 from her mother was sufficient to sustain her corroborate
12 her testimony. The agency reasonably gave little weight to
13 Chen’s mother’s letter given that it was “unsworn and
14 submitted by an interested witness.” Y.C. v. Holder, 741
15 F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s weighing
16 of letter from family member in China).
17 Chen’s failure to meet her burden of proof as to her
18 allegation of past persecution is dispositive of her claims
19 for asylum, withholding of removal, and CAT relief because
20 all three claims relied solely on that allegation. See Paul
21 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
22 For the foregoing reasons, the petition for review is
23 DENIED. As we have completed our review, any stay of
4
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
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