12-552
Chen v. Holder
BIA
Hom, IJ
A 089 200 528
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 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 29th day of March, two thousand thirteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 ZHI FEI CHEN,
14 Petitioner,
15
16 v. 12-552
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Nataliya I. Gavlin, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Paul Fiorino,
28 Senior Litigation Counsel; Franklin
29 M. Johnson, Jr., Trial Attorney,
1 Office of Immigration Litigation,
2 U.S. Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DISMISSED in part and DENIED in part.
9 Zhi Fei Chen, a native and citizen of China, seeks
10 review of a January 17, 2012, order of the BIA affirming the
11 July 28, 2010, decision of Immigration Judge (“IJ”) Sandy K.
12 Hom, which denied his application for asylum, withholding of
13 removal, and relief under the Convention Against Torture
14 (“CAT”). In re Zhi Fei Chen, No. A 089 200 528 (B.I.A. Jan.
15 17, 2012), aff’g No. A 089 200 528 (Immig. Ct. N.Y. City
16 July 28, 2010). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 I. Asylum - Pretermission
19 In pretermitting Chen’s asylum application as untimely,
20 the agency found that he failed to present clear and
21 convincing evidence that the application was filed within
22 one year of his arrival in the United States, as required
23 under 8 U.S.C. § 1158(a)(2)(B). We lack jurisdiction to
24 review this determination. See 8 U.S.C. § 1158(a)(3).
2
1 While we retain jurisdiction to review constitutional claims
2 and “questions of law,” 8 U.S.C. § 1252(a)(2)(D), Chen
3 challenges only the agency’s factual determinations, see
4 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d
5 Cir. 2006). Accordingly, we dismiss his petition for review
6 as to asylum.
7 II. Withholding of Removal
8 We retain jurisdiction to review the agency’s denial of
9 withholding of removal. Under the circumstances of this
10 case, we have reviewed the IJ’s decision as modified by the
11 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
12 520, 522 (2d Cir. 2005). The applicable standards of review
13 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
14 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
15 2009).
16 The agency concluded that Chen failed to provide
17 sufficient evidence to corroborate his claim that he would
18 face persecution or torture in China because of his practice
19 of Falun Gong. Under the REAL ID Act, which applies in this
20 case, “[t]he testimony of the applicant may be sufficient to
21 sustain the applicant’s burden without corroboration, but
22 only if . . . the applicant’s testimony is credible, is
3
1 persuasive, and refers to specific facts . . . In
2 determining whether the applicant has met the applicant’s
3 burden, the trier of fact may weigh the credible testimony
4 along with other evidence of record,” 8 U.S.C.
5 § 1158(b)(1)(B)(ii); 8 U.S.C. § 1231(b)(3)(C). Because
6 Chen’s testimony was confusing and imprecise, and the
7 documents Chen did present provided no greater insight into
8 his claim than his testimony, the agency did not err in
9 finding he failed to meet his burden of proof. See 8 U.S.C.
10 § 1158(b)(1)(B)(i).
11 Specifically, because Chen testified that he began to
12 practice Falun Gong in order to treat a skin disorder for
13 which he had been diagnosed and treated by a doctor who
14 prescribed various medications, the IJ reasonably required
15 Chen to provide medical records or statements from treating
16 physicians to corroborate his claim that he had suffered
17 from a skin disease. See Chuilu Liu v. Holder, 575 F.3d
18 193, 198 (2d Cir. 2009). The IJ reasonably found Chen’s
19 explanation for the missing records, that “they say they
20 don’t have it because it’s a small things, they don’t have
21 the records,” insufficient, particularly in light of the
22 absence of proof that Chen or his family had attempted to
4
1 obtain the records. See Diallo v. INS, 232 F.3d 279, 284
2 (2d Cir. 2000); see also Majidi v. Gonzales, 430 F.3d 77,
3 80-81 (2d Cir. 2005)(holding that agency need not credit an
4 applicant’s explanations unless those explanations would
5 compel a reasonable fact-finder to do so).
6 Furthermore, given Chen’s general testimony regarding
7 the circumstances surrounding his release from detention,
8 the agency reasonably required Chen to provide government
9 records or statements from his family to corroborate his
10 testimony that his parents paid a fine to secure his release
11 from detention. Chen’s testimony alone that he did not
12 “dare to get” a payment confirmation did not compel the
13 agency to conclude that corroborating evidence was not
14 available. See Chuilu Liu, 575 F.3d at 196-99; Majidi, 430
15 F.3d at 80-81.
16 Moreover, the agency reasonably found that Chen failed
17 to demonstrate a likelihood of future persecution in China
18 on account of his practice of Falun Gong, because Chen did
19 not provide any evidence of his continued practice of Falun
20 Gong in the United States, and had applied for, and obtained
21 without incident, a passport from the Chinese consulate in
22 New York. See 8 C.F.R. § 1208.16(b)(2) (noting that absent
5
1 a showing of past persecution, an applicant for withholding
2 of removal must show that it is “more likely than not” that
3 he would suffer future persecution based on a statutory
4 ground if returned to the country of removal). Because we
5 find no error in the agency’s determination that Chen failed
6 to meet his burden, we deny the petition as to withholding
7 of removal. Chen has not separately challenged the denial
8 of CAT relief.
9 For the foregoing reasons, the petition for review is
10 DISMISSED in part and DENIED in part. Because we have
11 completed our review, any stay of removal that the Court
12 previously granted in this petition is VACATED, and any
13 pending motion for a stay of removal in this petition is
14 DISMISSED as moot. Any pending request for oral argument in
15 this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
6