17-3048 Wang v. Sessions BIA Laforest, IJ A206 091 118 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 31st day of July, two thousand eighteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 BARRINGTON D. PARKER, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 XICAI WANG, 14 Petitioner, 15 16 v. 17-3048 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Lee Ratner, Law Office of John S. 24 Yong, New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Anthony P. 28 Nicastro, Assistant Director; 29 Sherease Pratt, Senior Litigation 30 Counsel, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 DC. 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 Xicai Wang, a native and citizen of the

6 People’s Republic of China, seeks review of a September 8,

7 2017, decision of the BIA affirming a February 7, 2017,

8 decision of an Immigration Judge (“IJ”) denying Wang’s

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re Xicai

11 Wang, No. A 206 091 118 (B.I.A. Sept. 8, 2017), aff’g No. A

12 206 091 118 (Immig. Ct. N.Y. City Feb. 7, 2017). We assume

13 the parties’ familiarity with the underlying facts and

14 procedural history in this case.

15 Under the circumstances of this case, we have reviewed

16 the IJ’s decision as supplemented by the BIA. Gertsenshteyn

17 v. U.S. Dep’t of Justice,

(2d Cir. 2008).

18 We review the agency’s corroboration decision for substantial

19 evidence and the BIA’s denial of remand for abuse of

20 discretion.

(b)(4); Kyaw Zwar Tun v. U.S.

21 INS,

(2d Cir. 2006) (applying substantial 2 1 evidence standard to corroboration finding); Li Yong Cao v.

2 U.S. Dep’t of Justice,

(2d Cir. 2005)

3 (reviewing BIA’s denial of remand under abuse of discretion

4 standard).

5 I. Corroboration

6 Under the REAL ID Act, an IJ may require an asylum

7 applicant to provide evidence that corroborates otherwise

8 credible testimony in order to meet the applicant’s burden

9 of proof for asylum.

(b)(1)(B)(ii). “[A]

10 failure to corroborate can suffice, without more, to

11 support a finding that an alien has not met his burden of

12 proof.” Chuilu Liu v. Holder,

, 198 n.5 (2d

13 Cir. 2009); see also Matter of L-A-C-,

,

14 519 (B.I.A. 2015) (holding that “regardless of whether an

15 applicant is deemed credible, he has the burden to

16 corroborate the material elements of the claim where the

17 evidence is reasonably obtainable”). When an IJ determines

18 that corroborating evidence is necessary, the applicant

19 must provide the evidence “unless the applicant does not

20 have the evidence and cannot reasonably obtain the

21 evidence.”

(b)(1)(B)(ii). But the agency 3 1 must identify what evidence should have been provided and

2 assess any explanation for the missing evidence. Chuilu

3 Liu,

. We will reverse the agency’s

4 decision only if “a reasonable trier of fact is compelled

5 to conclude that such corroborating evidence is

6 unavailable.”

(b)(4).

7 Contrary to Wang’s position, the agency had the

8 discretion to discount his mother’s letter because she was

9 an interested witness who was not available for cross

10 examination. See Y.C. v. Holder,

, 334 (2d

11 Cir. 2013) (deferring to agency’s decision to give limited

12 weight to letter from applicant’s spouse in China). And

13 aside from this letter, Wang did not provide any evidence

14 to corroborate events in China. The IJ identified the

15 missing evidence: medical records documenting the treatment

16 Wang received for injuries sustained during his detention;

17 documentation of his employment and termination (he claimed

18 he was fired from his construction job after his

19 detention); and a letter from the friend who introduced him

20 to the underground Catholic church, or other evidence of

21 his church attendance in China. The transcript reflects 4 1 that Wang was questioned about the absence of this evidence

2 at the hearing.

3 Wang argues that he sufficiently explained that the

4 evidence was unavailable. He testified that he lost the

5 documentation of his employment and did not receive any

6 written notice of his termination; he did not have medical

7 records because he was treated at a small private clinic that

8 did not keep any records; and he was not able to obtain a

9 letter from the friend who introduced him to the underground

10 church because this friend had fled China and Wang did not

11 know where he was. The record reflects that the BIA and IJ

12 considered and rejected these explanations. And Wang’s

13 explanations do not compel a finding that the evidence was

14 unavailable, especially because Wang and his mother did not

15 describe any attempts to obtain the requested evidence. 8

(b)(4).

17 The burden of proof determination is dispositive of

18 asylum, withholding of removal and CAT relief. See Lecaj v.

19 Holder,

(2d Cir. 2010).1

1 Wang does not challenge the denial of relief based on his

5 1 II. Remand

2 On appeal to the BIA, Wang submitted a short letter from

3 his Catholic church in China stating that he was a member of

4 the church, as well as a letter from a church friend

5 describing Wang’s participation in the church and his arrest

6 and detention. The BIA did not abuse its discretion in

7 declining to remand.

8 A motion to remand based on new evidence is subject to

9 the same rules as a motion to reopen, and thus a movant’s

10 failure to proffer previously unavailable evidence is a

11 permissible ground for denying remand. 8 C.F.R.

12 § 1003.2(c)(1) (requiring evidence that is new and

13 previously unavailable); Li Yong Cao,

.

14 Wang’s friend explained in his letter that he had been

15 living in hiding and was not in touch with Wang at the time

16 of the hearing, but had recently moved back to his hometown

17 and resumed contact with Wang. The BIA was not required to

18 credit the explanation given the suspicious timing and the

practice of Catholicism in the United States. See Yueqing Zhang v. Gonzales,

, 545 n.7 (2d Cir. 2005) (providing that issues not raised in an opening brief are waived). 6 1 lack of detail about why Wang’s friend returned to his

2 hometown after spending years in hiding and how Wang and

3 his friend got back in touch with one another. See 8

(b)(4); cf. Majidi v. Gonzales,

,

5 80-81 (2d Cir. 2005) (holding that in credibility context,

6 applicant’s explanations for inconsistent statements must

7 be compelling rather than merely plausible). The BIA also

8 reasonably found that because the church had more than 20

9 members and Wang did not explain why he could not obtain a

10 letter from anyone else at the church, he did not establish

11 that the information conveyed in the letters was previously

12 unavailable.

13 For the foregoing reasons, the petition for review is

14 DENIED. As we have completed our review, Wang’s pending

15 motion for a stay of removal is DENIED as moot. Any pending

16 request for oral argument in this petition is DENIED in

17 accordance with Federal Rule of Appellate Procedure 34(a)(2),

18 and Second Circuit Local Rule 34.1(b).

19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, 21 Clerk of Court

7