Liu v. Barr

18-3237
Liu v. Barr
BIA
Navarro, IJ
A205 904 262
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 8th day of September, two thousand twenty.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 RAYMOND J. LOHIER, JR.,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 MEI LING LIU,
14 Petitioner,
15
16 v. 18-3237
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Henry Zhang, New York, NY.
24
25 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
26 Attorney General; Brianne Whelan
27 Cohen, Senior Litigation Counsel;
28 Stefanie A. Svoren-Jay, Trial
1 Attorney, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 DC.
5 UPON DUE CONSIDERATION of this petition for review of a Board
6 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
7 ADJUDGED, AND DECREED that the petition for review is DENIED.
8 Petitioner Mei Ling Liu, a native and citizen of the People’s
9 Republic of China, seeks review of an October 3, 2018 decision
10 of the BIA affirming a September 26, 2017 decision of an
11 Immigration Judge (“IJ”) denying Liu’s application for asylum,
12 withholding of removal, and relief under the Convention Against
13 Torture (“CAT”). See In re Mei Ling Liu, No. A 205 904 262 (B.I.A.
14 Oct. 3, 2018), aff’g No. A 205 904 262 (Immig. Ct. N.Y. City
15 Sept. 26, 2017). We assume the parties’ familiarity with the
16 underlying facts and procedural history in this case.
17 We have reviewed the IJ’s decision as modified by the BIA.
18 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
19 (2d Cir. 2005). The applicable standards of review are well
20 established. See 8 U.S.C. § 1252(b)(4); Chuilu Liu v. Holder,
21 575 F.3d 193, 196 (2d Cir. 2009) (reviewing corroboration
22 determinations for substantial evidence).
23 “The testimony of the applicant may be sufficient to sustain
2
1 the applicant’s burden without corroboration, but only if the
2 applicant satisfies the trier of fact that the applicant’s
3 testimony is credible, is persuasive, and refers to specific
4 facts sufficient to demonstrate that the applicant is a refugee.
5 . . . Where the trier of fact determines that the applicant should
6 provide evidence that corroborates otherwise credible
7 testimony, such evidence must be provided unless the applicant
8 does not have the evidence and cannot reasonably obtain the
9 evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). Absent an adverse
10 credibility determination, a lack of corroboration can be an
11 independent basis for the denial of relief if the agency
12 identifies reasonably available evidence that should have been
13 presented. See id.; see also id. § 1252(b)(4); Chuilu Liu, 575
14 F.3d at 196–98. When denying a claim solely on an applicant’s
15 failure to provide corroborating evidence, the IJ must, either
16 in her decision or otherwise in the record (1) identify the
17 “specific pieces of missing, relevant documentation” and explain
18 why it was “reasonably available”; (2) provide the petitioner
19 “an opportunity to explain the omission”; and (3) “assess any
20 explanation given.” Chuilu Liu, 575 F.3d at 198; see also Wei
21 Sun v. Sessions, 883 F.3d 23, 31 (2d Cir. 2018). Advance notice
3
1 of the need for specific corroboration and an opportunity to
2 gather the evidence are not required, because “the alien bears
3 the ultimate burden of introducing such evidence without
4 prompting from the IJ.” Wei Sun, 883 F.3d at 31 (quoting Chiulu
5 Liu, 575 F.3d at 198). Where the IJ has identified the missing
6 evidence, we may reverse the agency’s decision only if “a
7 reasonable trier of fact is compelled to conclude that such
8 corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4);
9 see Yan Juan Chen v. Holder, 658 F.3d 246, 253 (2d Cir. 2011).
10 The agency specifically identified Liu’s missing evidence:
11 she did not corroborate that she was practicing Christianity
12 or attending church between July 2013 and March 2017. See Chuilu
13 Liu, 575 F.3d at 198–99. She provided a letter from her old
14 church and her current church, neither of which spoke to the
15 time period at issue, and failed to provide a letter from the
16 friend who introduced her to Christianity, despite testifying
17 they were in contact until a few months before the hearing. As
18 the agency found, such letters would have corroborated her
19 religious practice, and Liu did not demonstrate that she made
20 any attempt to obtain additional documentation to corroborate
21 this aspect of her claim. See id. at 198. Her disagreement with
4
1 the evidentiary weight the agency placed on the absent evidence
2 does not show it was unavailable. See Y.C. v. Holder, 741 F.3d
3 324, 332, 334 (2d Cir. 2013) (“We defer to the agency’s
4 determination of the weight afforded to an alien’s documentary
5 evidence”).
6 Nothing else in this record compels us to conclude that
7 additional documentation was unavailable to Liu. See 8 U.S.C.
8 § 1252(b)(4). Liu therefore has not established error in the
9 agency’s conclusion that she did not meet her burden of proof.
10 See 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 198.
11 Because she failed to meet her burden of proof for asylum, she
12 “necessarily” failed to meet the higher burden for withholding
13 of removal and CAT relief. Lecaj v. Holder, 616 F.3d 111, 119-20
14 (2d Cir. 2010).
15 For the foregoing reasons, the petition for review is
16 DENIED. All pending motions and applications are DENIED and
17 stays VACATED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
5