Xiu Hang Wu v. Mukasey
Xiu Hang Wu v. Mukasey
Opinion of the Court
SUMMARY ORDER
Xiu Hang Wu, a native and citizen of the People’s Republic of China, seeks review of an April 13, 2005, order of the BIA affirming the February 3, 2004, decision of Immigration Judge (“IJ”) Alan L. Page denying his applications for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). In re Xiu Hang Wu, No. A79 682 456 (B.I.A. Apr. 13, 2005), aff'g No. A79 682 456 (Immig. Ct. N.Y. City Feb. 3, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir. 2004). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e. g., Zhou Yun Zhang v. I.N.S., 386 F.3d 66, 73 (2d Cir. 2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d 296, 305 (2d Cir. 2007).
In the absence of an explicit finding as to credibility, we construe the IJ’s decision as having denied Wu’s applications for relief because he failed to sustain his burden of proof. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005) (assuming without deciding petitioner’s credibility where the BIA had also assumed such credibility). Wu’s failure to corroborate central elements of his claim supports the denial of his applications for relief on the ground that he was unable to sustain his burden of proof. See Diallo v. I.N.S., 232 F.3d 279, 287 (2d Cir. 2000).
“[WJhile consistent, detailed, and credible testimony may be sufficient to carry the alien’s burden, evidence corroborating his story, or an explanation for its absence, may be required where it would reason
An IJ’s denial of relief may be based on the failure of documentary evidence to include significant factual assertions. See Surinder Singh v. BIA, 438 F.3d 145, 148 (2d Cir. 2006) (finding that a village leader’s failure to include in his letter to the IJ the assei’tion that he was present at the time of petitioner’s release from detention properly supported the IJ’s adverse credibility determination). Here, it was Wu’s burden to establish his eligibility for asylum, see 8 C.F.R. § 208.13(a), but the IJ properly concluded that the omissions identified above were “of consequence” and ultimately led to his failure to meet that burden. This finding was proper, because once the IJ impugned Wu’s documentary evidence, the central elements of Wu’s claim were largely uncorroborated— that the police came to his home and sought his arrest; that the police threatened his family; that the police destroyed the furniture; indeed, even whether he freed the women at all. Having found that Wu’s evidence merited little weight, see Xiao Ji Chen v. U.S. Dep’t. of Justice, 471 F.3d 315, 342 (2d Cir. 2006), the IJ did not err in requiring additional corroboration, see Diallo, 232 F.3d at 288-89.
Wu failed to submit a letter from the friend with whom he stayed in China while he was in hiding. It was reasonable for the IJ to expect such a letter, when Wu offered no convincing explanation for his failure to submit that letter. See Diallo, 232 F.3d at 289-90. Wu failed to submit proof that he worked as a messenger for the local government. The IJ also reasonably found that Wu’s employment was a material element of his claim: without such employment, he would not have been given the key that enabled him to free the detained women and would not have been sought for arrest by police. See id., citing In re S-M-J- 21 I. & N. Dec. at 725. The IJ acknowledged Wu’s explanation that because he was a temporary employee, he was paid in cash and was not given identification, but concluded nevertheless that a government employee would have some proof of employment. Having thus considered and rejected Wu’s explanation, the IJ did not err in faulting Wu for his failure to submit such corroboration. See Diallo, 232 F.3d at 289-90.
Viewed as a whole, the record supports the IJ’s denial of asylum, as Wu was unable to corroborate the central elements of his claim and thus meet his burden of proof. See Diallo, 232 F.3d at 289-90; cf. Surinder Singh, 438 F.3d at 148. Moreover, because Wu was unable to show the objective likelihood of persecution needed to make out an asylum claim, he was necessarily unable to meet the higher standard required to succeed on his claims for withholding of removal and relief under the CAT, where all three claims were
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).
Reference
- Full Case Name
- XIU HANG WU v. Michael B. MUKASEY, Attorney General
- Status
- Published