16-380
Li v. Sessions
BIA
Wright, IJ
A200 923 678
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
16th day of October, two thousand seventeen.
PRESENT:
REENA RAGGI,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________
JIN LI,
Petitioner,
v. 16-380
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Lee Ratner, Law Office of Michael
Brown, New York, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal
Deputy Assistant Attorney
General; Anthony P. Nicastro,
Assistant Director; Sabatino F.
Leo, 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
DISMISSED IN PART AND DENIED IN PART.
Petitioner Jin Li, a native and citizen of China, seeks
review of a January 20, 2016, decision of the BIA affirming a
November 14, 2012, decision of an Immigration Judge (“IJ”)
denying Li’s application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Jin Li, No. A200 923 678 (B.I.A. Jan. 20, 2016), aff’g No.
A200 923 678 (Immig. Ct. N.Y. City Nov. 14, 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 both
the BIA’s and IJ’s decisions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Chuilu Liu v.
Holder, 575 F.3d 193, 194, 196 (2d Cir. 2009).
2
I. Asylum
Absent changed or extraordinary circumstances, an asylum
application must be filed within one year of an applicant’s
arrival in the United States. 8 U.S.C. § 1158(a)(2)(B), (D).
We generally lack jurisdiction to review the denial of asylum
as untimely or the agency’s findings regarding changed or
extraordinary circumstances. We do have jurisdiction, however,
to review “constitutional claims or questions of law.” Id.
§§ 1158(a)(3), 1252(a)(2)(D); Gui Yin Liu v. INS, 508 F.3d 716,
720-21 (2d Cir. 2007).
The agency found that Li’s evidence was insufficient to
establish his arrival in the United States within one year of
his filing his asylum application. We lack jurisdiction to
review that finding and therefore dismiss that part of the
petition challenging the agency’s denial of Li’s asylum
application as being untimely. See 8 U.S.C.
§§ 1158(a)(3), 1252(a)(2)(D).
II. Withholding of Removal and CAT Relief
The agency denied Li’s application for withholding of
removal and CAT relief based on his inability to corroborate
his claims. The IJ did not err in refusing to allow the
testimony of Li’s additional witnesses. “Decisions regarding
3
the appropriate conduct of a hearing and the submission of
evidence are committed to the discretion of the immigration
judge.” Ahmed v. Holder, 624 F.3d 150, 156 (2d Cir. 2010); see
8 C.F.R. § 1240.1(c). Li conceded that he did not timely
provide his witness list. See Immigration Court Practice
Manual § 3.1(b)(ii)(A). Nonetheless, Li was not prejudiced by
the exclusion of his witnesses because the IJ offered to adjourn
the hearing to give Li the opportunity to present his witnesses
after proper notice, and Li declined that offer. Despite Li’s
assertions otherwise, he never proffered his brother as a
witness—he only asked that his brother’s untimely affidavit be
given extra weight because he was present and could have been
cross examined.
Moreover, it was not unreasonable for the IJ to require Li
to corroborate his claims. “The testimony of the applicant may
be sufficient to sustain the applicant’s burden without
corroboration, but only if the applicant satisfies the trier
of fact that the applicant’s testimony is credible, is
persuasive, and refers to specific facts sufficient to
demonstrate that the applicant is a refugee.” 8 U.S.C.
§ 1158(b)(1)(B)(ii). “Where the trier of fact determines that
the applicant should provide evidence that corroborates
4
otherwise credible testimony, such evidence must be provided
unless the applicant does not have the evidence and cannot
reasonably obtain the evidence.” Id.; see also Chuilu Liu, 575
F.3d at 197. Generally, an IJ should identify specific pieces
of missing documentation, explain why the documentation was
reasonably available, provide the alien with an opportunity to
explain the omission, and assess the explanation that is given.
Chuilu Liu, 575 F.3d at 198. “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).
Here, the IJ found that Li had not corroborated that he had
attended church in China. See Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 342 (2d Cir. 2006). The only evidence
Li provided to corroborate his church attendance in China was
a form letter that bore a date that was inconsistent with Li’s
testimony. Li’s explanations for the inconsistency were not
compelling. It was not unreasonable for the IJ to give the letter
diminished weight. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
2005); see also Xiao Ji Chen, 471 F.3d at 342. It was also
5
reasonable for the agency to question Li’s failure to call his
brother as a witness or to offer his brother’s affidavit in
evidence. Li testified that his brother would have been able
to corroborate the events that occurred in China and Li’s
continuing practice of Christianity in the United States. The
IJ specifically identified the type of corroboration that might
have adequately supplemented Li’s testimony, and Li was given
a sufficient opportunity to respond, Chuilu Liu, 575 F.3d at
198, including the offer to adjourn, described above, which Li
declined. For those reasons, the agency did not err in denying,
for lack of corroboration, Li’s application for withholding of
removal and CAT relief. Id. at 198-99; see also Lecaj v.
Holder, 616 F.3d 111, 119-20 (2d Cir. 2010). Having affirmed
the BIA on this basis, it is unnecessary to consider the BIA’s
additional finding that Li failed to demonstrate that the
mistreatment he experienced rose to the level of persecution.
See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
III. Due Process
Aliens in removal proceedings are entitled to due process,
Morgan v. Gonzales, 445 F.3d 549, 552 (2d Cir. 2006); that right
is violated when an alien is “denied a full and fair opportunity
to present [his] claims or [when] the IJ or BIA otherwise
6
deprive[] [him] of fundamental fairness,” Burger v. Gonzales,
498 F.3d 131, 134 (2d Cir. 2007) (internal quotation marks
omitted). “Parties claiming denial of due process in
immigration cases must, in order to prevail, allege some
cognizable prejudice fairly attributable to the challenged
process.” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir.
2008) (internal quotation marks omitted).
Li argues that the IJ’s exclusion of his additional
witnesses deprived him of due process. As explained above,
however, Li cannot show he was denied a full and fair opportunity
to present his claims. He declined the IJ’s offer of an
adjournment that would have allowed him to present his
witnesses, and Li never proffered his brother as a witness.
For the foregoing reasons, the petition for review is
DISMISSED in part as to the agency’s denial of asylum as untimely
and DENIED in remaining part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
7