Ming Gao v. Holder

12-2003 Gao v. Holder BIA Vomacka, IJ A088 336 075 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 5th day of March, two thousand fourteen. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 BARRINGTON D. PARKER, 10 REENA RAGGI, 11 Circuit Judges. 12 _____________________________________ 13 14 MING GAO, 15 Petitioner, 16 12-2003 17 v. NAC 18 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Gabriel S. De La Merced, New York, 25 New York. 26 27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 28 Attorney General; Russell J. E. 29 Verby, Senior Litigation Counsel; 1 Monica Antoun, Trial Attorney, 2 Office of Immigration Litigation, 3 Civil Division, United States 4 Department of Justice, Washington, 5 D.C. 6 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioner, Ming Gao, a native and citizen of the 12 People’s Republic of China, seeks review of an April 18, 13 2012, decision of the BIA affirming the July 29, 2010, 14 decision of Immigration Judge (“IJ”) Alan A. Vomacka, which 15 denied his application for asylum, withholding of removal, 16 and relief under the Convention Against Torture (“CAT”). In 17 re Ming Gao, No. A088 336 075 (B.I.A. Apr. 18, 2012) (“BIA 18 Op.”), aff’g No. A088 336 075 (Immig. Ct. N.Y. City July 29, 19 2010) (“IJ Op.”). We assume the parties’ familiarity with 20 the underlying facts and procedural history of the case. 21 Under the circumstances of this case, we have reviewed 22 the decision of the IJ as modified and supplemented by the 23 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 24 2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 25 522 (2d Cir. 2005). The applicable standards of review are 2 1 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng 2 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because Gao 3 does not challenge the agency’s denial of CAT relief, we 4 have reviewed only the denial of asylum and withholding of 5 removal. 6 Gao argues that the agency erred by finding that he 7 failed to demonstrate that he suffered past persecution and 8 that he has a well-founded fear of future persecution based 9 on his practice of Falun Gong. Although “credible testimony 10 alone may be enough to carry the alien’s burden of proof,” 11 an IJ may “require that credible testimony of the alien be 12 corroborated in circumstances in which one would expect 13 corroborating evidence to be available and presented in the 14 immigration hearing.” Chuilu Liu v. Holder, 575 F.3d 193, 15 196-97 (2d Cir. 2009) (internal quotation marks and 16 alteration omitted); see id. at 199 (holding that alien 17 bears “ultimate burden of introducing such evidence without 18 prompting from the IJ” or of “explain[ing] the absence of 19 such corroborating evidence”); see also 8 U.S.C. 20 § 1158(b)(1)(B)(ii) (“Where the trier of fact determines 21 that the applicant should provide evidence that corroborates 22 otherwise credible testimony, such evidence must be provided 23 unless the applicant does not have the evidence and cannot 24 reasonably obtain the evidence.”). 3 1 Here, the BIA declined to analyze the IJ’s overall 2 assessment of Gao’s credibility, instead agreeing with the 3 IJ that Gao failed to provide reasonably available evidence 4 to corroborate his claims of past persecution and feared 5 future persecution in China on account of his practice of 6 Falun Gong. Indeed, the IJ labeled the absence of 7 corroborating evidence “the greatest weakness in [Gao]’s 8 presentation of his case.” IJ Op. 14, C.A.R. 57. “In this 9 posture, we may not rest our holding on the IJ's credibility 10 findings,” if any, “because the BIA did not affirm and adopt 11 those findings.” Yan Chen v. Gonzales, 417 F.3d at 271. 12 Rather, we assume Gao’s “credibility as to his testimony 13 concerning the events of his past and as to his subjective 14 fear of future persecution,” id. at 271-72, and evaluate 15 only the BIA’s determination regarding corroboration, which 16 “we review with substantial deference,” Chiulu Liu v. 17 Holder, 575 F.3d at 197-98 (citing 8 U.S.C. § 1252(b)(4) 18 (prohibiting reviewing court from “revers[ing] a 19 determination made by a trier of fact with respect to the 20 availability of corroborating evidence” unless “reasonable 21 trier of fact [would be] compelled to conclude that such 22 corroborating evidence is unavailable”)). 23 4 1 On an independent review of the record, we hold that a 2 reasonable factfinder under the circumstances could conclude 3 that evidence corroborating the claimed persecution, missing 4 from the record, was reasonably available to Gao. 5 Specifically, the BIA noted that Gao’s roommate, who 6 purportedly knew of Gao’s Falun Gong activities, did not 7 appear to testify at the hearing before the IJ. The IJ 8 expressly found Gao’s explanation for this omission, i.e., 9 that the roommate worked for long stretches away from home, 10 to be unsatisfactory. The BIA also observed, as did the IJ, 11 that Gao presented no statements or testimony as to his 12 involvement in Falun Gong in the United States from 13 individuals based in New York with whom he traveled to 14 Washington, D.C., to protest Chinese treatment of Falun Gong 15 practitioners.1 To the extent Gao did furnish supporting 16 statements from his brother and sister, along with 17 unidentified persons residing in China, the BIA reasonably 18 concluded that the IJ was entitled to afford those hearsay 1 Gao claimed before the IJ that only one of these acquaintances could possibly have testified on his behalf, because only that person knew him well at the time of the D.C. trip, see Tr. 72, C.A.R. 143, but that the person was afraid to testify because he or she lacked lawful immigration status. This does not explain, however, why none of Gao’s fellow practitioners in New York could testify about his activities since then. 5 1 statements minimal weight, as they simply tracked Gao’s own 2 account and lacked the proper foundation in any event. See 3 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d 4 Cir. 2006) (holding that weight to be afforded applicant’s 5 evidence in immigration proceedings lies largely within 6 agency’s discretion). 7 Insofar as the BIA’s decision may be read to fault Gao 8 for not providing in-person testimony from each of his 9 brother and a fellow practitioner of Falun Gong, because 10 those individuals allegedly lacked lawful immigration 11 status, the BIA may have erred. See Yan Juan Chen v. 12 Holder, 658 F.3d 246, 253 (2d Cir. 2011) (observing, though 13 not deciding, that it may be inappropriate to fault 14 applicant for failing to present corroborating witness who 15 is “unrelated to her and [who] ha[s] no incentive to appear 16 on her behalf that would counterbalance [witness’s] fear of 17 being apprehended”). But see BIA Op. 2 (affirming IJ’s 18 finding that Gao “failed to show that he could not have 19 reasonably obtained in-person testimony from at least some 20 of” persons identified by BIA (emphasis added)). 21 Nevertheless, substantial evidence supports the BIA’s 22 corroboration finding irrespective of these persons’ 23 potential testimony. See Alam v. Gonzales, 438 F.3d 184, 6 1 187-88 (2d Cir. 2006) (noting that legal error does not 2 warrant remand if there is no realistic possibility that, 3 absent error, IJ or BIA would have reached different 4 conclusion). 5 For the foregoing reasons, the petition for review is 6 DENIED. 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9 7