13-2539
Wang v. Holder
BIA
Sichel, IJ
A088 527 745
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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 2nd day of October, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
ZHAOLIN WANG,
Petitioner,
v. 13-2539
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Guang Jun Gao, Esq., Flushing, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; John W. Blakeley, Senior
Litigation Counsel; David Schor,
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 DENIED.
Zhaolin Wang, a native and citizen of China, seeks
review of a June 6, 2013, decision of the BIA affirming the
August 3, 2012, decision of an Immigration Judge (“IJ”),
which denied his application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Zhaolin Wang, No. A088 527 745 (B.I.A. Jun.
6, 2013), aff’g No. A088 527 745 (Immig. Ct. N.Y.C. Aug. 3,
2012). 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 BIA’s decision, and assume Wang’s credibility. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
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).
Because Wang does not allege past harm, he has the
burden to prove that he has an objectively reasonable,
well-founded fear of future persecution. 8 U.S.C.
§ 1101(a)(42); Ramsameachire v. Ashcroft, 357 F.3d 169, 178
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(2d Cir. 2004). The applicant must make some showing that
the government is aware or is likely to become aware of the
activities that he alleges will lead to persecution.
Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).
Although an alien’s testimony alone may be enough to
establish a fear of future persecution, the agency may
require corroboration of even credible testimony. 8 U.S.C.
§§ 1158(b)(1)(B)(ii), 1231(b)(3)(C). “No court shall
reverse a determination made by a trier of fact with respect
to the availability of corroborating evidence . . . unless
the court finds . . . that a reasonable trier of fact is
compelled to conclude that such corroborating evidence is
unavailable.” 8 U.S.C. § 1252(b)(4). The agency’s
determination that a particular piece of corroborating
evidence is available to the applicant (and thus whether it
should “reasonably be expected”) is a finding of fact to
which this Court defers under the substantial evidence
standard. Kyaw Zwar Tun v. INS, 445 F.3d 554, 563, 568 (2d
Cir. 2006); see also 8 U.S.C. § 1158(b)(1)(B)(ii).
We find no error in the agency’s determination that
Wang failed to establish a well-founded fear of future
persecution. Wang’s fear is based on his political activity
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in the United States on behalf of the Chinese Democracy and
Justice Party (“CDJP”). Wang testified before the agency,
and argues here, that he believes the Chinese government is
aware of his political activities, and provided two
explanations for his belief, neither of which is compelling.
First, he asserted that, because he had published
various articles and engaged in various public protests, the
Chinese government would reasonably be expected to be aware
of his activities. However, it cannot be said that, based
upon this speculation alone, any reasonable factfinder would
be compelled to conclude that he faced a well-founded fear
of future persecution. Cf. 8 U.S.C. § 1252(b)(4)(B); Jian
Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005)
(holding that, absent solid support in the record, a
petitioner’s fear is “speculative at best”). Instead, the
BIA reasonably concluded that “the evidence does not
demonstrate that his activities have been sufficiently
visible or notable to come to the attention of Chinese
authorities.” Pet’r Special App’x 4.
Second, he claimed that his wife was visited by Chinese
police, who asked her to warn Wang to cease his activities
on behalf of the CDJP. He did not provide a letter from his
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wife to corroborate this claim, purportedly because his wife
was afraid to help him. This explanation, however, does not
suffice to demonstrate that the corroborating evidence is
unavailable, within the meaning of § 1252(b)(4),
particularly given that Chinese authorities allegedly told
Wang’s wife to communicate with him. Cf. Yan Juan Chen v.
Holder, 658 F.3d 246, 252-53 (2d Cir. 2011)(deferring to an
IJ’s conclusion that an alien was required to present her
husband as a witness to corroborate her claim).
Furthermore, Wang’s argument that he lacked reasonable
notice that he should submit such a letter is meritless.
The agency may not deny an alien’s claim for asylum for lack
of corroboration without first providing the alien notice of
what corroboration is necessary and an opportunity to cure
the deficiency. Ming Shi Xue v. BIA, 439 F.3d 111, 122 (2d
Cir. 2006) (“This notice requirement . . . was designed not
only to guard against arbitrary and excessive requests by an
IJ, but also, and equally importantly, to guarantee
applicants an opportunity to remedy the supposed evidentiary
gap.” (citation omitted)). But, an IJ is not obliged to do
so prior to rendering a decision on the application. Chuilu
Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009)(“But though
we require an IJ to specify the points of testimony that
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require corroboration, we have not held that this must be
done prior to the IJ's disposition of the alien's claim.”).
Here, the IJ properly identified, in its decision, the
deficiency it perceived in Wang’s evidence, to wit, the lack
of a letter or other statement from his wife, and expressly
found that such evidence was available to him. Moreover,
even assuming that the IJ was required to provide some
notice that it expected this letter to be produced, it
satisfied that obligation. At the January 2012 hearing at
which Wang testified regarding his wife’s interactions with
the police, the IJ asked whether a letter from Wang’s wife
was available. Wang was then given an additional
opportunity at the final hearing, eight months later, to
submit additional evidence, but declined to do so.
For the foregoing reasons, the petition for review is
DENIED, and Wang’s motion for a stay of removal is DENIED as
moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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