16-3124 Chen v. Sessions BIA Hom, IJ A200 919 329 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 5th day of October, two thousand eighteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 ROSEMARY S. POOLER, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 XIAN YING CHEN, 14 Petitioner, 15 16 v. 16-3124 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 ____________________________________ 22 23 FOR PETITIONER: G. Victoria Calle, Calle & 24 Associates, New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Cindy S. 28 Ferrier, Assistant Director; Matt 29 A. Crapo, Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 33 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 Xian Ying Chen, a native and citizen of the

6 People’s Republic of China, seeks review of an August 12,

7 2016, decision of the BIA affirming an August 5, 2015,

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

9 application for asylum, withholding of removal, and relief

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

11 Ying Chen, No. A200 919 329 (B.I.A. Aug. 12, 2016), aff’g

12 No. A200 919 329 (Immig. Ct. N.Y. City Aug. 5, 2015). We

13 assume the parties’ familiarity with the underlying facts

14 and procedural history in this case.

15 We have reviewed the IJ’s decision as modified by the

16 BIA and thus reach only the agency’s ruling that Chen failed

17 to meet her burden of proof. See Xue Hong Yang v. U.S.

18 Dep’t of Justice,

(2d Cir. 2005). The

19 applicable standards of review are well established. See

20

(b)(4)(B); Yanqin Weng v. Holder,

(2d Cir. 2009).

22 An asylum applicant has the burden of proving

23 eligibility for relief.

(b)(1)(B)(i). While 2 1 an applicant can meet her burden of proof by credible

2 testimony alone in some circumstances, an IJ “may weigh the

3 credible testimony along with other evidence of record.”

4

§ 1158(b)(1)(B)(ii). “Where the trier of fact

5 determines that the applicant should provide evidence that

6 corroborates otherwise credible testimony, such evidence

7 must be provided unless the applicant does not have the

8 evidence and cannot reasonably obtain the evidence.” Id.;

9 see Chuilu Liu v. Holder,

, 198 n.5 (2d Cir.

10 2009) (“[A] failure to corroborate can suffice, without

11 more, to support a finding that an alien has not met [her]

12 burden of proof.”). We cannot reverse the agency’s

13 corroboration finding unless a reasonable trier of fact

14 would be “compelled to conclude that such corroborating

15 evidence is unavailable.”

(b)(4).

16 Chen admitted that she had no documentary evidence to

17 support her claim and that she did not try to obtain any

18 such evidence. The agency reasonably concluded that Chen

19 failed to show that the evidence was unavailable because

20 Chen conceded that she made no attempt to obtain any medical

21 records. See

(b)(1)(B)(i), (ii),

22 1252(b)(4).

23 3 1 Chen speculates that records may not exist, asserting

2 that no court or government report has ever noted the

3 existence of documentary proof of a forced abortion under

4 China’s family planning policy. Her conjecture does not and

5 would not compel a reasonable trier of fact to conclude that

6 no medical evidence is available. See 8 U.S.C.

7 § 1252(b)(4). Nor does it explain why she failed to produce

8 records to support the other facets of her claim such as the

9 IUD requirement or routine IUD and pregnancy checks.

10 Chen nevertheless argues that the supporting statement

11 from her mother was sufficient to sustain her corroborate

12 her testimony. The agency reasonably gave little weight to

13 Chen’s mother’s letter given that it was “unsworn and

14 submitted by an interested witness.” Y.C. v. Holder, 741

(2d Cir. 2013) (deferring to agency’s weighing

16 of letter from family member in China).

17 Chen’s failure to meet her burden of proof as to her

18 allegation of past persecution is dispositive of her claims

19 for asylum, withholding of removal, and CAT relief because

20 all three claims relied solely on that allegation. See Paul

21 v. Gonzales,

(2d Cir. 2006).

22 For the foregoing reasons, the petition for review is

23 DENIED. As we have completed our review, any stay of 4 1 removal that the Court previously granted in this petition

2 is VACATED, and any pending motion for a stay of removal in

3 this petition is DISMISSED as moot. Any pending request for

4 oral argument in this petition is DENIED in accordance with

5 Federal Rule of Appellate Procedure 34(a)(2), and Second

6 Circuit Local Rule 34.1(b).

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9 10

5