Wei v. Garland ( 2023 )

21-6059
Wei v. Garland
BIA
Conroy, IJ
A206 803 042
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 10th day of August, two thousand twenty-three.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 RICHARD J. SULLIVAN,
9 MYRNA PÉREZ,
10 Circuit Judges.
11 _____________________________________
12
13 GUI WEI,
14 Petitioner,
15
16 v. 21-6059
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, Esq., New York,
24 NY.
25
26 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
27 Attorney General; Anthony P.
28 Nicastro, Assistant Director;
29 Linda Y. Cheng, Trial Attorney,
30 Office of Immigration Litigation,
1 United States Department of
2 Justice, Washington, DC.
3 UPON DUE CONSIDERATION of this petition for review of a
4 Board of Immigration Appeals (“BIA”) decision, it is hereby
5 ORDERED, ADJUDGED, AND DECREED that the petition for review
6 is DENIED.
7 Petitioner Gui Wei, a native and citizen of the People’s
8 Republic of China, seeks review of a January 19, 2021 decision
9 of the BIA affirming a September 25, 2018 decision of an
10 Immigration Judge (“IJ”) denying his application for asylum,
11 withholding of removal, and relief under the Convention
12 Against Torture (“CAT”). In re Gui Wei, No. A 206 803 042
13 (B.I.A. Jan. 19, 2021), aff’g No. A 206 803 042 (Immig. Ct.
14 N.Y.C. Sept. 25, 2018). We assume the parties’ familiarity
15 with the underlying facts and procedural history.
16 We have reviewed the IJ’s decision as modified and
17 supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d
18 268, 271 (2d Cir. 2005); Xue Hong Yang v. U.S. Dep’t of Just.,
19 426 F.3d 520, 522 (2d Cir. 2005). We review factual findings
20 for substantial evidence and questions of law and application
21 of law to undisputed fact de novo. See Yanqin Weng v. Holder,
22 562 F.3d 510, 513 (2d Cir. 2009).
23 An asylum applicant has the burden to establish either
2
1 past persecution or an “objectively reasonable” fear of
2 future persecution. Ramsameachire v. Ashcroft, 357 F.3d 169,
3 178 (2d Cir. 2004); see also 8 U.S.C. § 1158(b)(1)(B)(i);
4 8 C.F.R. § 1208.13(b). “The testimony of the applicant may
5 be sufficient to sustain the applicant’s burden without
6 corroboration, but only if the applicant satisfies the trier
7 of fact that the applicant’s testimony is credible, is
8 persuasive, and refers to specific facts sufficient to
9 demonstrate that the applicant is a refugee.” 8 U.S.C.
10 § 1158(b)(1)(B)(ii). “[T]he trier of fact may weigh the
11 credible testimony along with other evidence of record.
12 Where the trier of fact determines that the applicant should
13 provide evidence that corroborates otherwise credible
14 testimony, such evidence must be provided unless the
15 applicant does not have the evidence and cannot reasonably
16 obtain the evidence.” Id. “No court shall reverse a
17 determination made by a trier of fact with respect to the
18 availability of corroborating evidence . . . unless the court
19 finds . . . that a reasonable trier of fact is compelled to
20 conclude that such corroborating evidence is unavailable.”
21 8 U.S.C. § 1252(b)(4).
22 The agency reasonably found that Wei did not meet his
3
1 burden of proof because he failed to provide persuasive
2 testimony and to corroborate his claim with documentary
3 evidence of his detention for attending an underground
4 Christian church or of his proselytizing over social media in
5 the United States. See Yan Juan Chen v. Holder, 658 F.3d
6 246, 253–54 (2d Cir. 2011) (upholding denial for failure to
7 meet burden based on lack of sufficiently persuasive or
8 detailed testimony and failure to provide reasonably
9 available corroboration).
10 The IJ did not err in finding Wei’s testimony
11 unpersuasive, given that it lacked detail about, among other
12 things, his attendance at an underground church gathering and
13 his interactions with authorities during and after his
14 detention. Nor did the IJ err in requiring
15 corroboration. See 8 U.S.C. § 1158(b)(1)(B)(ii) (allowing
16 IJ to require corroboration of even credible testimony if
17 evidence is available and reasonably obtainable); Wei Sun v.
18 Sessions, 883 F.3d 23, 28 (2d Cir. 2018) (“[A]n applicant may
19 be generally credible, but his testimony may not be sufficient
20 to carry the burden of persuading the fact finder of the
21 accuracy of his claim of crucial facts if he fails to put
22 forth corroboration that should be readily available.”). Wei
4
1 provided no documents corroborating his detention by Chinese
2 authorities and his efforts to convert others in the United
3 States, despite testifying that he had such evidence.
4 Certified Admin. Record at 165–66. Similarly, the letters
5 from his family and friends did not corroborate his testimony
6 that he spread the gospel in the United States or on Chinese
7 social media. Because Wei could have presented additional
8 evidence and has not done so or established it is unavailable,
9 the IJ did not err in concluding that he failed to meet his
10 burden of proof. See 8 U.S.C. § 1158(b)(1)(B)(ii); Wei Sun,
11 883 F.3d at 31; see also 8 U.S.C. § 1252(b)(4). This
12 conclusion is dispositive of all forms of relief. See Lecaj
13 v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010). We have
14 considered Wei’s remaining arguments and find them to be
15 without merit.
16 For the foregoing reasons, the petition for review is
17 DENIED. All pending motions and applications are DENIED and
18 stays VACATED.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe,
21 Clerk of Court
22
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