Nague v. Holder

13-4620
Nague v. Holder
BIA
Burr, IJ
A079 113 317
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 April, two thousand fifteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DENNY CHIN,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 FELIX KPLOHI NAGUE,
15 Petitioner,
16
17 v. 13-4620
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Joshua E. Bardavid, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; John S. Hogan, Senior
28 Litigation Counsel; David H.
29 Wetmore, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 DENIED.
5 Petitioner Felix Kplohi Nague, a native and citizen of
6 the Ivory Coast, seeks review of a November 14, 2013,
7 decision of the BIA, affirming the October 12, 2011,
8 decision of an Immigration Judge (“IJ”), denying withholding
9 of removal and relief under the Convention Against Torture
10 (“CAT”). In re Felix Kplohi Nague, No. A079 113 317 (B.I.A.
11 Nov. 14, 2013), aff’g No. A079 113 317 (Immig. Ct. N.Y. City
12 Oct. 12, 2011). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we review the
15 IJ’s decision as modified by the BIA, i.e., minus the basis
16 for denying relief that the BIA expressly declined to
17 consider (the pretermission of asylum). See Xue Hong Yang
18 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005);
19 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
20 applicable standards of review are well established. See 8
21 U.S.C. § 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510,
22 513 (2d Cir. 2009).
23 For applications such as Nague’s, which are governed by
2
1 the REAL ID Act, “[t]he testimony of the applicant may be
2 sufficient to sustain the applicant’s burden without
3 corroboration, but only if the applicant satisfies the trier
4 of fact that the applicant’s testimony is credible, is
5 persuasive, and refers to specific facts sufficient to
6 demonstrate that the applicant is a refugee.” 8 U.S.C.
7 § 1158(b)(1)(B)(ii). Contrary to Nague’s assertions, the
8 agency did not err in finding that his testimony was
9 insufficiently “persuasive” and “specific” to sustain his
10 burden of proof without corroboration. Nague had not been
11 to the Ivory Coast in approximately fourteen years, he had
12 no first-hand knowledge of the harm that befell his
13 brothers, and he did not assert past persecution or a
14 specific, current threat to his safety. See Jian Hui Shao
15 v. Mukasey, 546 F.3d 138, 162 (2d Cir. 2008) (observing that
16 while “credible testimony was sufficient to demonstrate a
17 genuine subjective fear of future persecution, more was
18 needed to demonstrate the objective reasonableness of that
19 fear”); Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.
20 2005) (holding that “[i]n the absence of solid support in
21 the record for [an applicant’s] assertion that he will be
22 [persecuted], his fear is speculative at best”).
3
1 Nague also argues that the agency erred by failing to
2 specifically identify the type of corroborating evidence
3 that was missing. His argument is not supported by the
4 record: the agency noted that Nague failed to submit any
5 proof of his membership in the Rally of the Republicans
6 (“RDR”), such as a membership card or a witness to testify
7 to his membership, or any evidence corroborating his older
8 brother’s cause of death, such as a witness or a letter from
9 someone with personal knowledge.
10 The agency also did not err in finding that additional
11 corroborating evidence was reasonably available. Nague
12 argued that: (1) his friends were unable to obtain his RDR
13 membership card in the Ivory Coast because the situation in
14 that country is unstable; (2) he had trouble obtaining
15 documents from his family; and (3) he did not have
16 sufficient time to obtain evidence. The agency reasonably
17 rejected these explanations because Nague could have
18 obtained evidence that he has been an RDR member in the
19 United States since 1997, he was able to obtain his
20 brother’s death certificate from someone in the Ivory Coast,
21 and he had more than two years to gather evidence for his
22 hearing. See 8 U.S.C. § 1252(b)(4)(D) (“No court shall
4
1 reverse a determination made by a trier of fact with respect
2 to the availability of corroborating evidence . . . [unless]
3 a reasonable trier of fact is compelled to conclude that
4 such corroborating evidence is unavailable.”).
5 Lastly, Nague has not shown that the agency ignored his
6 background evidence. Nague faults the IJ’s decision for
7 failing to explicitly mention the State Department’s Country
8 Report. The agency, however, is not required to “expressly
9 parse or refute on the record each individual argument or
10 piece of evidence offered by the petitioner.” Zhi Yun Gao
11 v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007) (internal
12 quotation marks omitted). In any event, given Nague’s
13 failure to submit any evidence corroborating his RDR
14 membership, the IJ’s failure to explicitly discuss the
15 Country Report does not compellingly suggest that material
16 evidence was ignored. See Xiao Ji Chen v. U.S. Dep’t of
17 Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
23 oral argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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