13-3991
Dorje v. Holder
BIA
Nelson, IJ
A088 551 844
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.
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
19th day of January, two thousand sixteen.
PRESENT:
DENNIS JACOBS,
PETER W. HALL,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
TSERING DORJE, AKA TSERING DORJEE,
AKA LOBSANG TASHI,
Petitioner,
v. 13-3991
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; John S. Hogan, Senior
Litigation Counsel; David H.
Wetmore, Trial Attorney, Office of
Immigration Litigation, 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.
Petitioner Tsering Dorje, a native of Tibet and citizen of
China, seeks review of a September 20, 2013, decision of the
BIA affirming a January 10, 2012, decision of an Immigration
Judge (“IJ”) denying Dorje’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Tsering Dorje, No. A088 551 844 (B.I.A.
Sept. 20, 2013), aff’g No. A088 551 844 (Immig. Ct. N.Y. City
Jan. 10, 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
IJ’s decision as supplemented 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); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
Cir. 2009).
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Dorje claims past persecution for the first time before
this Court. His claim fails for two reasons. It is
unexhausted and therefore not subject to review. See Lin Zhong
v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1, 119-20 (2d Cir.
2007). And, even if exhausted, Dorje admitted that he was not
home when Chinese authorities allegedly discovered materials
relating to the Dalai Lama, and he suffered no harm other than
fearing arrest. See Huo Qiang Chen v. Holder, 773 F.3d 396,
406-07 (2d Cir. 2014) (holding that “threats of persecution,
no matter how credible, do not demonstrate past persecution,”
even where a threat causes the alien to flee his home).
Dorje’s claim that he faces future persecution, based on
Chinese officials’ discovery of his pro-Tibetan materials and
his political activity in the United States, also fails. To
prevail, Dorje was required to show a reasonable possibility
that authorities in China are either aware of his activities
or are likely to become aware of them. Hongsheng Leng v.
Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).
Here, the IJ properly found that Dorje failed to meet his
burden of proof because he did not corroborate the most basic
elements of his claim: that he distributed materials relating
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to the Dalai Lama, that Chinese officials discovered those
materials, and that he is involved in pro-Tibetan activities
in the United States. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where
the trier of fact 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.”); Yan
Juan Chen v. Holder, 658 F.3d 246, 251-52 (2d Cir. 2011). Dorje
submitted no evidence, other than his testimony, that he
possessed the tapes or photographs or that Chinese officials
came to his home in 2004. The IJ pointed out that Dorje could
have submitted statements from his uncle, who allegedly
provided him the Dalai Lama materials, and his wife, who (unlike
Dorje) was present during the officials’ alleged visit. See
id. at 252-53 (explaining that IJ should identify missing
corroborating evidence); Chuilu Liu v. Holder, 575 F.3d 193,
198 (2d Cir. 2009) (explaining that IJ need not identify missing
evidence at hearing, but rather may do so in decision). The
IJ was not required to credit Dorje’s explanations—his uncle’s
death and wife’s illiteracy—because Dorje’s uncle died almost
two years after Dorje applied for asylum and his wife could have
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signed a statement that someone transcribed for her. Yan Juan
Chen, 658 F.3d at 252 (holding that Court defers to IJ’s finding
as to availability of evidence unless reasonable trier of fact
is compelled to conclude it is unavailable).
Dorje argues that the BIA unreasonably expected him to
produce evidence issued by his persecutor, “such as a police
report, public security notice, or statements of others.” The
BIA’s suggestion that Dorje could have submitted such evidence
is problematic. In re S-M-J-, 21 I. & N. Dec. 722, 725 (B.I.A.
1997) (explaining that agency may not unreasonably demand the
applicant to “present evidence to corroborate particular
experiences (e.g., corroboration from the persecutor)”). The
BIA’s suggestion, however, was in addition to its observation
that Dorje failed to submit reasonably available evidence or
any corroboration at all. Accordingly, the BIA’s mention of
police reports, though problematic, does not warrant a remand
because the fact remains that Dorje did not provide reasonably
available corroborating evidence. Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 338 (2d Cir. 2006) (holding that remand
not required if it would be futile because “we can state with
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confidence that the same decision would be made if we were to
remand”).
Similarly, Dorje failed to corroborate the fact of his
political activities in the United States. He submitted only
a membership card. The IJ reasonably afforded this card
limited weight because it only showed that Dorje joined an
organization but revealed nothing regarding his purported
participation in rallies in the United States. Id. at 342
(holding that weight given corroborating evidence lies largely
with discretion of agency). Dorje had no explanation for his
failure to submit photographs of himself at the rallies, which
he testified to having. By his own admission, he failed to
present reasonably available evidence, and the IJ properly
found that Dorje failed to meet his burden of proof. Chuilu
Liu, 575 F.3d at 199.
Based on the lack of evidence of Dorje’s political
activism, the IJ reasonably concluded that Dorje failed to show
that the Chinese government is aware or likely to become aware
of his pro-Tibetan activities. Hongsheng Leng, 528 F.3d at
143. Dorje argues that the background evidence shows the
“repression and persecution levied upon ethnic Tibetan cultural
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activists in China” and that he “provided the Court with valid
documentation of his membership in that group.” To the extent
that he raises a pattern or practice claim, it is unpersuasive.
The agency’s determination that Dorje failed to show that the
Chinese government was aware or likely to become aware of his
political activities defeats his eligibility for relief. Cf.
Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554, 570 (2d Cir. 2006)
(remanding where agency failed to determine whether foreign
government exhibited a pattern or practice and whether
government officials were likely to become aware of the
petitioner’s activities). Given that Dorje did not
demonstrate his political activism, he has failed to show that
he is “similarly situated to” Tibetan cultural activists as
would be required for such a claim. 8 C.F.R.
§ 1208.13(b)(2)(iii).
Finally, because Dorje has not met his burden to prove his
eligibility for asylum, he “necessarily fails” to meet his
burden for withholding of removal and CAT relief. Lecaj v.
Holder, 616 F.3d 111, 119 (2d Cir. 2010).
For the foregoing reasons, the petition for review is
DENIED.
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FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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