Rong Ye v. Holder

10-2531-ag
Ye v. Holder
BIA
Abrams, IJ
A094 789 122
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 10th day of August, two thousand eleven.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges.
_____________________________________
RONG YE, AKA YE RONG,
Petitioner,
v. 10-2531-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Lee Ratner, Law Offices of Michael
Brown, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Keith I. McManus, Senior Litigation
Counsel; Tracie N. Jones, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
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 GRANTED.
Rong Ye, a native and citizen of the People’s Republic of
China, seeks review of a June 9, 2010, decision of the BIA,
affirming the July 21, 2008, decision of Immigration Judge
(“IJ”) Steven R. Abrams, which denied his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Rong Ye, No. A094
789 122 (B.I.A. June 9, 2010), aff’g No. A094 789 122 (Immig.
Ct. N.Y. City July 21, 2008). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA decision. See Xue
Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
2005). The applicable standards of review are well-
established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Rather than addressing the IJ’s adverse credibility
determination, the BIA found that Ye failed to sustain his
burden of proof because he failed to provide reasonably
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available evidence. Because the BIA declined to reach the
IJ’s adverse credibility determination, we assume the
credibility of Ye’s testimony. See Yan Chen v. Gonzales, 417
F.3d 268, 271 (2d Cir. 2005). Although an applicant’s
credible testimony alone may be enough to carry his burden of
proof, 8 C.F.R. § 208.13(a), the agency may nonetheless
require that the testimony be corroborated if one would
reasonably expect corroborating evidence to be available. See
8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu v. Holder, 575 F.3d
193, 196-98 (2d Cir. 2009); see also Diallo v. INS, 232 F.3d
279, 285 (2d Cir. 2000).
The BIA found that an affidavit Ye submitted from a
friend in China was of limited evidentiary weight because the
affidavit stated that Ye was arrested after Chinese cadres
“stormed inside,” whereas Ye testified that he was arrested in
an field. Although Ye argues that the reference to “inside”
might include inside a field, at least in Chinese, the BIA was
not required to accept his explanation for the inconsistency
as it would not necessarily be compelling to a reasonable
fact-finder, and, consequently, it did not err in according
diminished weight to the affidavit. See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005) (holding that an agency need
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not credit an applicant’s explanations for inconsistent
testimony unless those explanations would compel a reasonable
fact-finder to do so); Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir. 2006) (noting that the weight
accorded to evidence lies largely within the agency’s
discretion).
However, the BIA erred in finding that Ye did not submit
reasonably available corroborative evidence without addressing
his explanations. In particular, the BIA faulted Ye for
failing to corroborate his account with testimony or an
affidavit from his friend, Fei Ye (“Fei”), who was in the
United States, and with whom Ye was practicing Falun Gong at
the time of his arrest in China. The BIA also found that Ye
failed to corroborate his current practice of Falun Gong with
testimony from his fellow practitioners in the United States.
Ye argues that this evidence was not reasonably available,
because, as he explained to the IJ, Fei did not have legal
immigration status in the United States and his fellow Falun
Gong practitioners were afraid to come to the immigration
court. Ye further averred before the IJ that Fei was afraid
to come to his attorney’s office to prepare an affidavit. In
concluding that Ye failed to provide this corroborating
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evidence, neither the IJ nor the BIA addressed Ye’s
explanation for why the evidence was not reasonably available.
We have held that before the BIA concludes that an alien
has not provided adequate corroboration of an otherwise
credible claim, it must “explain specifically . . . why [the
alien]’s proffered explanations for the lack of such
corroboration are insufficient.” Diallo, 232 F.3d at 290.
Moreover, we have observed that “[i]t might be plausible that
[a petitioner] would be unable to provide statements from
corroborating witnesses regarding his activities in [his
native country], and he might not be expected to do so, if the
only people aware of these activities were . . . people
present in the United States illegally,” because “such people
. . . may understandably desire to keep a low profile.” Kyaw
Zwar Tun v. INS, 445 F.3d 554, 568-69 (2d Cir. 2006).
Accordingly, the agency’s failure to assess Ye’s explanation
as to why corroborative evidence was not reasonably available
warrants remand. See Diallo, 232 F.3d at 290.
Finally, we decline to conclude that Ye has waived his
claims to withholding of removal and CAT relief because,
contrary to the government’s argument, Ye has challenged the
BIA’s burden finding, which was the basis of its denial of
Ye’s asylum claim, as well as his claims for withholding of
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removal and CAT relief. However, because Ye has never
challenged the IJ’s denial of his application for CAT relief
on the grounds of illegal departure, we consider that argument
abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n.6 (2d
Cir. 2007).
For the foregoing reasons, the petition for review is
GRANTED, the order of removal is VACATED, and the case is
REMANDED to the BIA for proceedings consistent with this
decision. Any pending request for oral argument in this
petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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