19-3347
Wu v. Wilkinson
BIA
Wright, IJ
A206 287 902
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 23rd day of February, two thousand twenty-one.
PRESENT:
PIERRE N. LEVAL,
RICHARD J. SULLIVAN,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
HAIPENG WU,
Petitioner,
v. 19-3347
NAC
ROBERT M. WILKINSON, ACTING
UNITED STATES ATTORNEY GENERAL,
Respondent. 1
_____________________________________
FOR PETITIONER: Mike P. Gao, Esq., Flushing, NY.
1 Pursuant to Fed. R. App. P. 43(c)(2), Robert M. Wilkinson is
automatically substituted for former Attorney General William P. Barr.
FOR RESPONDENT: [VACANT], Assistant Attorney
General; Jeffrey C. Leist, Senior
Litigation Counsel; Judith R.
O’Sullivan, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 Haipeng Wu, a native and citizen of the
People’s Republic of China, seeks review of a September 30,
2019 decision of the BIA affirming a March 1, 2018 decision
of an Immigration Judge (“IJ”) denying Wu’s application for
asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). In re Haipeng Wu, No.
A206 287 902 (B.I.A. Sept. 30, 2019), aff’g No. A 206 287 902
(Immig. Ct. N.Y. City Mar. 1, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
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). “We review the BIA’s factual findings under the
substantial evidence standard, including those underlying the
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immigration court’s determination that an alien has failed to
satisfy his burden of proof.” Chuilu Liu v. Holder, 575 F.3d
193, 196 (2d Cir. 2009) (internal quotation marks omitted).
We find no error in the agency’s conclusion that Wu
failed to meet his burden of proof. “The testimony of the
applicant may be sufficient to sustain the applicant’s burden
without corroboration,” but the factfinder weighs the
testimony and other evidence and, “[w]here 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.” 8 U.S.C.
§ 1158(b)(1)(B)(ii). An applicant’s failure to present
reasonably available corroboration “can suffice, without
more, to support a finding that an alien has not met his
burden of proof.” Chuilu Liu, 575 F.3d at 198 n.5. While an
IJ must “point[] to specific pieces of missing, relevant
documentation” and “show[] that this documentation was
reasonably available,” the law does not require the IJ to
identify missing evidence “prior to the IJ's disposition of
the alien's claim.” Id. at 198; Wei Sun v. Sessions, 883
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F.3d 23, 31 (2d Cir. 2018). Where the applicant has an
opportunity to explain the absence of that evidence and the
IJ assesses any explanation given, Wei Sun, 883 F.3d at 31,we
will remand only if “a reasonable trier of fact is compelled
to conclude that such corroborating evidence is unavailable,”
8 U.S.C. § 1252(b)(4). 1
Here, the agency reasonably determined that Wu failed to
adequately corroborate that he was a practicing Christian or
that he would have a well-founded fear of future religious
persectution. To begin, Wu failed to provide any evidence
from anyone who had direct knowledge of his recent religious
activities – an omission made more troubling by Wu’s
admittedly sporadic church attendence from May 2014 through
May 2017. Although Wu explained that his pastor was busy and
might have required payment for a letter and that other people
at his church were too afraid of immigration authorities to
provide statements, these explanations do not compel the
conclusion that such evidence was unavailable. See id.
Notably, Wu did not testify that his pastor refused to provide
1 Although Wu did not challenge the IJ’s corroboration finding when he
appealed to the BIA, we deem his challenge exhausted because the BIA
considered the finding. See Xian Tuan Ye v. DHS, 446 F.3d 289, 296–97
(2d Cir. 2006).
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a letter, and the fact that some individuals who attend his
church feared immigration authorities does not compel the
conclusion that none could have provided written statements
or testimony to corroborate Wu’s account. And even after the
IJ’s opinion carefully considered these glaring shortcomings
and rejected Wu’s explanations for them, Wu neither
challenged the IJ’s corroboration finding on appeal to the
BIA nor offered any further “explanation for the failure to
provide such corroborating evidence, either in a motion to
reopen or on appeal to the BIA.” See Chuilu Liu, 575 F.3d at
199. Under these circumstances, the record does not compel
reversal of the agency’s findings. Id.
Because Wu’s failure to meet his burden of proof as to
this sole basis for his fear of persecution or torture is
dispositive, see 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R.
§ 1208.16(c)(2), we do not reach the agency’s alternate
conclusion that, assuming Wu is a practicing Christian, he
failed to show a well-founded fear of persecution, see INS v.
Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts
and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach.”).
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For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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