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
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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