12-1836
Chen v. Holder
BIA
Bukszpan, IJ
A087 441 615
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 12th day of June, two thousand thirteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 KONG DAO CHEN,
14 Petitioner,
15
16 v. 12-1836
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; Derek C. Julius,
28 Senior Litigation Counsel; Julie S.
29 Saltman, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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 DENIED.
5 Petitioner Kong Dao Chen, a native and citizen of the
6 People’s Republic of China, seeks review of an April 18,
7 2012, order of the BIA, affirming the May 12, 2010, decision
8 of an Immigration Judge (“IJ”), which pretermitted his
9 application for asylum and denied his application for
10 withholding of removal and relief under the Convention
11 Against Torture (“CAT”). In re Kong Dao Chen, No. A087 441
12 615 (B.I.A. Apr. 18, 2012), aff’g No. A087 441 615 (Immig.
13 Ct. N.Y. City May 12, 2010). We assume the parties’
14 familiarity with the underlying facts and procedural history
15 in this case.
16 We review the decisions of both the IJ and the BIA.
17 See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
18 The applicable standards of review are well established.
19 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng, 562 F.3d at 513.
20 I. Asylum
21 Title 8, Section 1158(a)(3) of the United States Code
22 provides that no court has jurisdiction to review the
23 agency’s finding that an asylum application was untimely
2
1 under 8 U.S.C. § 1158(a)(2)(B). Notwithstanding that
2 provision, we retain jurisdiction to review constitutional
3 claims and “questions of law.” 8 U.S.C. § 1252(a)(2)(D).
4 Here, Chen argues, for the first time, that the agency
5 erred by not giving him or his witness an opportunity to
6 explain the inconsistency between the witness’s statement
7 and her testimony. However, because Chen did not raise this
8 argument in his appeal to the BIA, it is unexhausted and we
9 decline to consider it. See Foster v. INS, 376 F.3d 75, 78
10 (2d Cir. 2004); see also Lin Zhong v. U.S. Dep’t of Justice,
11 480 F.3d 104, 119-20 (2d Cir. 2007).
12 Chen also asserts that his credible testimony alone
13 should have been sufficient to meet his burden of
14 demonstrating by clear and convincing evidence that he filed
15 for asylum within one year of entry. In essence, Chen
16 raises a question of law regarding whether the agency
17 applied an inappropriately high burden. See Li Hua Lin v.
18 U.S. Dep’t of Justice, 453 F.3d 99, 104 (2d Cir. 2006).
19 This argument fails, however, as the agency is permitted to
20 require reasonably available corroborating evidence even
21 where the testimony was credible. See 8 U.S.C.
22 § 1158(b)(1)(B)(ii). Because the only corroborating
3
1 evidence was inconsistent, the agency did not apply too high
2 a burden in finding that the evidence was not “clear and
3 convincing” as required by the statute. See 8 U.S.C.
4 § 1158(a)(2)(B); see also Li Hua Lin, 453 F.3d at 104-05.
5 II. Withholding of Removal and CAT
6 Under the REAL ID Act, which applies to this case,
7 credible testimony may be sufficient to sustain an
8 applicant’s burden of proof without corroboration. 8 U.S.C.
9 §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C); see also Chuilu Liu v.
10 Holder, 575 F.3d 193, 196-98 (2d Cir. 2009). However, when
11 an IJ “determines that the applicant should provide evidence
12 that corroborates otherwise credible testimony, such
13 evidence must be provided unless the applicant does not have
14 the evidence and cannot reasonably obtain the evidence.”
15 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C). Before
16 denying a claim solely based on an applicant’s failure to
17 provide corroborating evidence, the agency should “explain
18 specifically . . . why it is reasonable . . . to expect such
19 corroboration[ ] and . . . why [the applicant’s] proffered
20 explanations for the lack of such corroboration are
21 insufficient.” Diallo v. INS, 232 F.3d 279, 290 (2d Cir.
22 2000). We give substantial deference to an IJ’s
4
1 determination that corroborating evidence was required and
2 reasonably available to an applicant. See Yan Juan Chen v.
3 Holder, 658 F.3d 246, 252 (2d Cir. 2011).
4 In this case, the agency noted that Chen had not
5 submitted medical records or evidence of the nature and
6 severity of his mistreatment by authorities, and had failed
7 to offer testimony from anyone at his current church. The
8 agency did not err in rejecting Chen’s explanations for the
9 lack of corroboration and reasonably concluded that Chen
10 failed to offer reasonably available evidence. Though Chen
11 testified that the medical care he received was from an
12 unlicensed clinic that did not issue receipts, he did not
13 allege that he had attempted to obtain any records or that
14 he could not have obtained a letter from someone who had
15 provided him with care. In addition, the evidence Chen did
16 submit, a letter from his father, did not mention that Chen
17 received any medical care at all. Furthermore, Chen’s
18 explanation that no one from his Brooklyn church could
19 testify on his behalf was undermined by the church’s
20 proximity to the hearing location and the absence of any
21 explanation why a pastor or parishioner could not be
22 available telephonically. Chen provided no explanation for
23 the lack of corroboration relating to the nature and
5
1 severity of his mistreatment. We find no basis for reversal
2 of the agency’s finding. See 8 U.S.C. § 1252(b)(4)
3 (providing that no court shall reverse the decision “with
4 respect to the availability of corroborating evidence”
5 unless the court is “compelled to conclude that such
6 corroborating evidence is unavailable”).
7 Chen also argues that he did offer a number of
8 documents to corroborate his claim, including two letters
9 from church members in China, and a letter from the pastors
10 at his church in Brooklyn. However, the agency was not
11 required to credit those documents, as the documents from
12 China were not signed before the U.S. consul and thus the
13 identity of the authors could not be verified, and the
14 letter from his pastors was not notarized and neither pastor
15 was available to testify. See Xiao Ji Chen v. U.S. Dep’t of
16 Justice, 471 F.3d 315, 342 (2d Cir. 2006) (stating that the
17 weight afforded to the applicant’s evidence in immigration
18 proceedings lies largely within the discretion of the
19 agency).
20 Because Chen’s claims for withholding of removal and
21 CAT relief both related to his Christian faith, and were
22 based on the same factual predicate, the agency did not err
23 in denying CAT relief on the same ground. See Paul v.
24 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
6
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
7