Mei Ting Liu v. Holder

11-2009-ag
Liu v. Holder
BIA
Cheng, IJ
A087 469 098
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 22nd day of February, two thousand twelve.
PRESENT:
JOSEPH M. McLAUGHLIN,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_______________________________________
MEI TING LIU,
Petitioner,
v. 11-2009-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Norman Kwai Wing Wong, New York,
N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; John S. Hogan, Senior
Litigation Counsel; Robbin K. Blaya,
Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, DC
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Petitioner Mei Ting Liu, a native and citizen of the
People’s Republic of China, seeks review of an April 29,
2011, order of the BIA affirming the August 27, 2009,
decision of Immigration Judge (“IJ”) Mary M. Cheng, denying
his application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Mei Ting Liu, No. A087 469 098 (B.I.A. Apr. 29, 2011), aff’g
No. A087 469 098 (Immig. Ct. N.Y. City Aug. 27, 2009). We
assume the parties’ familiarity with the underlying facts
and procedural history of the case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented and modified by the BIA.
See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
The applicable standards of review are well-established.
See 8 U.S.C. § 1252(b)(4)(B); see also Chuilu Liu v. Holder,
575 F.3d 193, 196 (2d Cir. 2009).
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I. Asylum, Withholding of Removal, and CAT Relief
Substantial evidence supports the agency’s conclusion
that Liu failed to meet his burden of proving eligibility
for relief. Under the REAL ID Act, “[t]he testimony of the
applicant may be sufficient to sustain the applicant’s
burden without corroboration, but only if the applicant
satisfies the trier of fact that the applicant’s testimony
is credible, is persuasive, and refers to specific facts
sufficient to demonstrate that the applicant is a refugee.”
8 U.S.C. § 1158(b)(1)(B)(ii). While a failure to
corroborate cannot, without more, support an adverse
credibility determination, “a failure to corroborate can
suffice, without more, to support a finding that an alien
has not met his burden of proof.” See Chuilu Liu, 575 F.3d
at 198 n.5. When an IJ "determines that the applicant
should provide evidence that corroborates otherwise credible
testimony, such evidence must be provided unless the
applicant does not have the evidence and cannot reasonably
obtain the evidence." 8 U.S.C. § 1158(b)(1)(B)(ii).
In this case, the agency was not unreasonable in
requiring corroborating evidence regarding Liu’s claim of
past persecution, as he provided no evidence, other than his
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own testimony, regarding his Christianity, worship at a
house church in China, or his detention and beating by
Chinese authorities. Moreover, the agency identified the
type of corroborating evidence that Liu reasonably could
have presented to corroborate his claim, and, even crediting
his explanation that he had no letters from his family
because they were afraid Chinese officials would discover
the correspondence, found that he had not adequately
explained “the total absence of supporting evidence to
verify his religious practices or the abuse he suffered by
authorities.” In re Mei Ting Liu, No. A087 469 098, at *1
(B.I.A. Apr. 29, 2011). Consequently, substantial evidence
supports the agency’s determination that Liu could
reasonably provide corroborating evidence, and its
determination that Liu’s testimony alone could not establish
past persecution. See 8 U.S.C. § 1252(b)(4); Chuilu Liu,
575 F.3d at 196-99.
Because the agency reasonably concluded that Liu did
not establish past persecution, he is not entitled to a
presumption of future persecution. See 8 C.F.R.
§ 1208.13(b)(1). With regard to his claim that he has an
independent, well-founded fear of future persecution based
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on his conversion to Mormonism in the United States, the BIA
did not err in finding that in the absence of any evidence
showing that the Chinese government was targeting Chinese
citizens who converted to Mormonism while abroad, or that
the Chinese government was aware of Liu’s conversion to
Mormonism, Liu did not meet his burden of showing an
objectively reasonable fear of future persecution. See
Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008)
(“[T]o establish a well-founded fear of persecution in the
absence of any evidence of past persecution, an alien must
make some showing that authorities in his country of
nationality are either aware of his activities or likely to
become aware of his activities.”). Because this finding is
dispositive of Liu’s claim of a well-founded fear of future
persecution, we need not consider his argument that the IJ
failed to adequately consider the evidence he provided
regarding his conversion to, and practice of, Mormonism in
the United States.*
*
Because Liu argues for the first time before this
Court that there is a pattern or practice in China of
persecuting practitioners of unauthorized faiths, he has
not exhausted that argument and we decline to consider it
in the first instance. See Lin Zhong v. U.S. Dep’t of
Justice, 480 F.3d 104, 107 n.1, 119-20 (2d Cir. 2007).
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Because Liu was unable to show the objective likelihood
of persecution needed to make out an asylum claim, and
because his claim for CAT relief rests on the same factual
predicate as his asylum claim, his claims for withholding of
removal and CAT relief also fail. See Paul v. Gonzales, 444
F.3d 148, 156 (2d Cir. 2006)
II. BIA’s Standard of Review
Liu argues that the BIA erred by engaging in improper
de novo review and fact-finding. In an appeal pending with
the BIA after September 2002, the BIA is expressly
prohibited from engaging in independent fact-finding, see 8
C.F.R. § 1003.1(d)(3)(iv), and may overturn the IJ’s
findings of fact only if “clearly erroneous,” see 8 C.F.R.
§ 1003.1(d)(3)(i). In contrast to findings of fact, the BIA
reviews “questions of law, discretion, and judgment and all
other issues in appeals from decisions of immigration judges
de novo.” 8 C.F.R. § 1003.1(d)(3)(ii). Here, the BIA did
not engage in a de novo review to overturn the IJ’s finding
of fact, but rather to determine that Liu’s fear was not
objectively reasonable, and such de novo review was not in
error. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 162 (2d
Cir. 2008); Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
104, 117 (2d Cir. 2007).
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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