14-3283
Chen v. Lynch
BIA
Wright, IJ
A200 211 623
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 28th day of January , two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 SHENG JIAN CHEN,
14 Petitioner,
15
16 v. 14-3283
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Zhen Liang Li, New York, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; John W.
28 Blakeley, Assistant Director;
29 Francis W. Fraser, Senior Litigation
1 Counsel, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Sheng Jian Chen, a native and citizen of China,
11 seeks review of an August 7, 2014, decision of the BIA affirming
12 a June 19, 2013, decision of an Immigration Judge (“IJ”) denying
13 Chen’s application for asylum, withholding of removal, and
14 relief under the Convention Against Torture (“CAT”). In re
15 Sheng Jian Chen, No. A200 211 623 (B.I.A. Aug. 7, 2014), aff’g
16 No. A200 211 623 (Immig. Ct. N.Y. City June 19, 2013). We assume
17 the parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Under the circumstances of this case, we have considered
20 both the IJ’s and the BIA’s opinions “for the sake of
21 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
22 524, 528 (2d Cir. 2006). The applicable standards of review
2
1 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
2 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 In his asylum application, Chen contended that he feared
4 future persecution on account of his Christianity because
5 Chinese police were aware that he had distributed leaflets on
6 behalf of his church in China, and he continued to be religiously
7 active and proselytize in the United States. The agency denied
8 Chen’s application because he had not adequately corroborated
9 either that the police in China were aware of his activities
10 there or that he engaged in religious activities in the United
11 States, and he did not provide a compelling reason for the lack
12 of corroboration.
13 The agency may require corroboration despite otherwise
14 credible testimony, and deny an application based on the failure
15 to provide such corroboration, if the corroborating evidence
16 is reasonably available. 8 U.S.C. § 1158(b)(1)(B)(ii); see
17 Yan Juan Chen v. Holder, 658 F.3d 246, 251-52 (2d Cir. 2011).
18 However, the IJ must identify the corroborating evidence that
19 should have been presented, and explain why such evidence would
20 be reasonably available. Yan Juan Chen, 658 F.3d at 253. The
21 IJ need not point to the missing evidence and show that it is
3
1 reasonably available during the hearing; rather, it is
2 sufficient that she do so in her decision. Chuilu Liu v.
3 Holder, 575 F.3d 193, 197-98 (2d Cir. 2009).
4 Here, the IJ required documentation that the police were
5 aware that Chen had distributed religious leaflets in China.
6 This evidence was reasonably available: Chen had already
7 provided a letter from his friend who, he contended, had given
8 the police his name. That letter, however, did not corroborate
9 Chen’s contention. Chen did not identify any reason why the
10 required evidence – a letter with the relevant information –
11 was not reasonably available. In addition, Chen failed to
12 corroborate any continuing religious practice. The IJ also
13 required evidence to show that Chen was religiously active in
14 the United States; Chen agreed that witnesses from his church
15 were available to testify, but did not call them. His
16 explanation that he did not know he was required to provide such
17 witnesses is not compelling because “the alien bears the
18 ultimate burden of introducing [corroborating] evidence
19 without prompting from the IJ.” See id. at 198. Because Chen
20 did not offer a compelling explanation that the required
21 evidence was not reasonably available, we defer to the agency’s
4
1 conclusion that Chen did not adequately corroborate his claim.
2 See 8 U.S.C. § 1252(b)(4).
3 Absent the identified evidence, Chen did not adequately
4 show that anyone in China was aware, or likely to become aware,
5 of his religious activities. See Hongsheng Leng v. Mukasey,
6 528 F.3d 135, 143 (2d Cir. 2008). While Chen provided a letter
7 from his mother stating that the police had come to her house
8 looking for Chen, the agency was not required to credit the
9 letter because it was from an interested witness not available
10 for cross examination. See Matter of H-L-H- & Z-Y-Z-, 25 I&N
11 Dec. 209, 215 (B.I.A. 2010), rev’d on other grounds by Hui Lin
12 Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); see also Xiao Ji
13 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).
14 As a result, the agency did not err in concluding that Chen
15 had not met his burden to show a well-founded fear of future
16 persecution. Because Chen was unable to establish the
17 objective likelihood of harm needed to make out an asylum claim,
18 he was necessarily unable to meet the higher standard required
19 to succeed on a claim for withholding of removal or CAT relief.
20 See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O=Hagan Wolfe, Clerk
6