18-3353
Wei v. Wilkinson
BIA
Hom, IJ
A205 182 341
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 18th day of February, two thousand twenty-one.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 SUSAN L. CARNEY,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 FENGYING WEI,
14 Petitioner,
15
16 v. 18-3353
17 NAC
18 ROBERT M. WILKINSON, ACTING
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent. 1
21 _____________________________________
1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting
Attorney General Robert M. Wilkinson is automatically substituted as
Respondent.
1 FOR PETITIONER: Jed S. Wasserman, Esq., New York,
2 NY.
3
4 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
5 Assistant Attorney General;
6 Anthony P. Nicastro, Assistant
7 Director; Ilana J. Snyder, Trial
8 Attorney, Office of Immigration
9 Litigation, United States
10 Department of Justice, Washington,
11 DC.
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED that the petition for review
15 is DENIED.
16 Petitioner Fengying Wei, a native and citizen of the
17 People’s Republic of China, seeks review of an October 4,
18 2018, decision of the BIA affirming a September 20, 2017,
19 decision of an Immigration Judge (“IJ”) denying Wei’s
20 application for asylum, withholding of removal, and relief
21 under the Convention Against Torture (“CAT”). In re Fengying
22 Wei, No. A 205 182 341 (B.I.A. Oct. 4, 2018), aff’g No. A 205
23 182 341 (Immig. Ct. N.Y. City Sept. 20, 2017). We assume the
24 parties’ familiarity with the underlying facts and procedural
25 history.
26 Under the circumstances of this case, we have reviewed
27 the IJ’s decision as modified by the BIA. See Yan Chen v.
2
1 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005); Xue Hong Yang v.
2 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
3 Because the BIA assumed Wei’s credibility, so do we. Yan
4 Chen, 417 F.3d at 271–72. The standards of review are well
5 established. See Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d
6 Cir. 2009).
7 An IJ may require an asylum applicant to provide evidence
8 that corroborates otherwise credible testimony in order to
9 meet the applicant’s burden of proof for asylum. 8 U.S.C.
10 § 1158(b)(1)(B)(ii). “[A] failure to corroborate can
11 suffice, without more, to support a finding that an
12 [applicant] has not met his burden of proof.” Chuilu Liu,
13 575 F.3d at 198 n.5; see also Wei Sun v. Sessions, 883 F.3d
14 23, 28 (2d Cir. 2018). When an IJ determines that
15 corroborating evidence is necessary, the applicant must
16 provide the evidence “unless the applicant does not have the
17 evidence and cannot reasonably obtain the evidence.” 8
18 U.S.C. § 1158(b)(1)(B)(ii). We may reverse a finding that
19 corroboration is lacking only if “a reasonable trier of fact
20 is compelled to conclude that such corroborating evidence is
21 unavailable.” Id. § 1252(b)(4).
3
1 While the agency must identify what reasonably available
2 evidence should have been provided and must assess the
3 applicant’s explanations for any missing evidence, it is the
4 applicant’s burden to provide the evidence or an adequate
5 explanation for any failure to obtain it. Chuilu Liu, 575
6 F.3d at 198-99. To overcome the need to corroborate, the
7 applicant’s explanations must compel a conclusion that the
8 requested evidence is not reasonably available. See 8
9 U.S.C. § 1252(b)(4); Yan Juan Chen v. Holder, 658 F.3d 246,
10 253 (2d Cir. 2011).
11 The agency reasonably concluded that Wei failed to
12 sufficiently corroborate that she was arrested, beaten,
13 required to pay a bond for her release, and forced to report
14 to a police station more than 20 times by Chinese authorities
15 after she allegedly was caught attending a Christian house
16 church meeting in 2011. The IJ did not err in declining to
17 credit letters from Wei’s husband and father because her
18 husband was present but declined to testify at Wei’s hearing
19 and her father is an interested witness who was not subject
20 to cross-examination. See Yan Juan Chen, 658 F.3d at 253
21 (upholding agency’s rejection of applicant’s argument that
22 her husband was unavailable to testify on her behalf in asylum
4
1 proceedings due to his unlawful immigration status); Matter
2 of H-L-H & Z-Y-Z, 25 I. & N. Dec. 209, 215 (BIA 2010) (giving
3 diminished evidentiary weight to letters from relatives
4 because they were “interested witnesses who were not subject
5 to cross-examination”), rev’d on other grounds by Hui Lin
6 Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
7 The agency also reasonably determined that Wei could have
8 provided a medical report from the hospital where she had her
9 injuries treated and evidence of a fine because she testified
10 that she had medical report and a friend paid the fine for
11 her release. When asked why she did not provide this
12 evidence, she did not allege it was unavailable and conceded
13 she had not tried to obtain it. Her explanation that it had
14 been a long time since the events does not compel the
15 conclusion that the evidence was unavailable. See 8 U.S.C.
16 §§ 1158(b)(1)(B)(ii), 1252(b)(4).
17 Because the agency identified corroborating evidence
18 that should have been provided and Wei has not shown that
19 such evidence was unavailable, she has not established error
20 in the agency’s conclusion that she did not meet her burden
21 of proof. See 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu, 575
22 F.3d at 198. Because she failed to meet her burden of proof
5
1 for asylum, she “necessarily” failed to meet the higher burden
2 for withholding of removal and CAT relief. Lecaj v. Holder,
3 616 F.3d 111, 119–20 (2d Cir. 2010).
4 Finally, we reject Wei’s contention that the IJ’s
5 exclusion of late-filed evidence deprived her of due process.
6 “To establish a violation of due process, an [applicant] must
7 show that she was denied a full and fair opportunity to
8 present her claims,” Burger v. Gonzales, 498 F.3d 131, 134
9 (2d Cir. 2007) (internal quotation marks omitted), and
10 “allege some cognizable prejudice fairly attributable to the
11 challenged process,” Garcia-Villeda v. Mukasey, 531 F.3d 141,
12 149 (2d Cir. 2008) (internal quotation marks omitted). As
13 Wei concedes, except for her daughter’s certificate of
14 baptism, the late-filed documents were clearer copies of
15 documents previously admitted into evidence. She has not
16 demonstrated how these late documents relate to the
17 corroboration issues that the agency’s decision relied on,
18 and therefore she has not established prejudice as required
19 to prevail on a due process claim. See id.
6
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
7