17-2062
Ma v. Barr
BIA
Wright, IJ
A206 068 589
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 30th day of July, two thousand nineteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 JOSÉ A. CABRANES,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 KAIFENG MA,
14 Petitioner,
15
16 v. 17-2062
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Raymond Lo, Jersey City, NJ.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Anthony P.
27 Nicastro, Assistant Director;
28 Patricia E. Bruckner, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DISMISSED IN PART and DENIED IN PART.
5 Petitioner Kaifeng Ma, a native and citizen of the
6 People’s Republic of China, seeks review of a June 7, 2017,
7 decision of the BIA affirming a November 14, 2016, decision
8 of an Immigration Judge (“IJ”) denying Ma’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Kaifeng Ma, No.
11 A 206 068 589 (B.I.A. June 7, 2017), aff’g No. A 206 068 589
12 (Immig. Ct. N.Y. City Nov. 14, 2016). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 “[W]e review the decision of the IJ as supplemented by
16 the BIA.” Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007).
17 The standards of review are well established. See 8 U.S.C.
18 § 1252(b)(4)(B); Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d
19 Cir. 2009); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
20 2009).
21 “The testimony of the applicant may be sufficient to
22 sustain the applicant’s burden without corroboration, but
23 only if the applicant satisfies the trier of fact that the
2
1 applicant’s testimony is credible, is persuasive, and refers
2 to specific facts sufficient to demonstrate that the
3 applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see
4 also Chuilu Liu, 575 F.3d at 196-97. “In determining whether
5 the applicant has met [his] burden, the trier of fact may
6 weigh the credible testimony along with other evidence of
7 record. Where the trier of fact determines that the
8 applicant should provide evidence that corroborates otherwise
9 credible testimony, such evidence must be provided unless the
10 applicant does not have the evidence and cannot reasonably
11 obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). The
12 agency did not err in determining that Ma failed to
13 corroborate his claim.
14 Although the IJ found Ma credible, the IJ reasonably
15 required corroboration because Ma’s household registration
16 did not list any employment or occupation and his asylum
17 claim was based on compensation he was owed on account of
18 the length of his employment. See 8 U.S.C.
19 § 1158(b)(1)(B)(ii). Furthermore, the IJ properly
20 identified the missing evidence. See Chuilu Liu, 575 F.3d
21 at 198-99. The IJ noted that Ma did not provide any
22 evidence that he was employed by a company for 18 years or
23 reliable evidence regarding the amount of compensation he
3
1 was entitled to. And Ma did not establish that the
2 evidence was unavailable. See id. at 198; see also 8
3 U.S.C. § 1252(b)(4) (“No court shall reverse a
4 determination made by a trier of fact with respect to the
5 availability of corroborating evidence . . . unless . . . a
6 reasonable trier of fact is compelled to conclude that such
7 corroborating evidence is unavailable.”). The IJ noted the
8 corroboration that Ma should have been able to provide such
9 as relevant Chinese law or regulations or any documentation
10 from the labor department. Although Ma asserts that the IJ
11 erred by not recognizing the difficulties he faced in
12 obtaining such evidence, he did not explain what those
13 difficulties were. He therefore has not shown that
14 corroboration was not reasonably available. See 8 U.S.C.
15 § 1158(b)(1)(B)(ii).
16 The agency was not required to credit the letter from
17 Ma’s mother because she was an interested party and not
18 subject to cross-examination. See Matter of H-L-H- & Z-Y-Z-
19 , 25 I. & N. Dec. 209, 215 (BIA 2010) (finding unsworn letters
20 from friends and family did not constitute substantial
21 support because they were from interested witnesses not
22 subject to cross-examination), overruled on other grounds by
23 Hui Lin Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012);
4
1 see also Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013)
2 (deferring to agency’s decision to give little weight to
3 letter from applicant’s spouse in China). Furthermore, the
4 letter from Ma’s coworker did not corroborate how long Ma had
5 worked at the company or how much compensation Ma was owed.
6 Accordingly, because a reasonable fact-finder would not
7 be compelled to conclude that Ma could not have corroborated
8 his employment or the compensation calculation, the agency
9 did not err in denying relief on this basis. See 8 U.S.C.
10 § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 196-98. Because
11 Ma’s claims were all based on this same factual predicate,
12 the corroboration finding is dispositive of asylum and
13 withholding of removal. See Lecaj v. Holder, 616 F.3d 111,
14 119 (2d Cir. 2010). Accordingly, we deny the petition as to
15 asylum and withholding of removal and do not reach the
16 agency’s alternative finding that Ma did not demonstrate a
17 nexus to a protected ground. See INS v. Bagamasbad, 429 U.S.
18 24, 25 (1976) (“As a general rule courts and agencies are not
19 required to make findings on issues the decision of which is
20 unnecessary to the results they reach.”). We dismiss the
21 petition as to CAT relief because Ma did not exhaust his CAT
22 claim before the BIA. See Karaj v. Gonzales, 462 F.3d 113,
23 119 (2d Cir. 2006).
5
1 For the foregoing reasons, the petition for review is
2 DISMISSED in part and DENIED in part. As we have completed
3 our review, any stay of removal that the Court previously
4 granted in this petition is VACATED, and any pending motion
5 for a stay of removal in this petition is DISMISSED as moot.
6 Any pending request for oral argument in this petition is
7 DENIED in accordance with Federal Rule of Appellate Procedure
8 34(a)(2), and Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
6