16-3360 Chen v. Sessions BIA Bukszpan, IJ A087 787 770

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of October, two thousand eighteen.

PRESENT: REENA RAGGI, PETER W. HALL, DENNY CHIN, Circuit Judges. _____________________________________

ZHAOYI CHEN, Petitioner,

v. 16-3360 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Farah Loftus, Los Angeles, CA.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Keith I. McManus, Assistant Director; Juria L. Jones, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DISMISSED in part and DENIED in part.

Petitioner Zhaoyi Chen, a native and citizen of the

People’s Republic of China, seeks review of a BIA decision

affirming an Immigration Judge’s (“IJ”) denial of her claims

for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Zhaoyi Chen, No.

A087 787 770 (B.I.A. Sept. 2, 2016), aff’g No. A087 787 770

(Immig. Ct. N.Y. City Mar. 2, 2015). Under the circumstances

of this case, we review the IJ’s and the BIA’s decisions “for

the sake of completeness,” Wangchuck v. Dep’t of Homeland

Sec.,

(2d Cir. 2006), applying well-

established standards of review, see

(b)(4)(B); Bah v. Mukasey,

(2d Cir. 2008)

(reviewing questions of law and application of law to

undisputed fact de novo). In so doing, we assume the parties’

familiarity with the underlying facts and procedural history

in this case.

2 Asylum

Title 8 U.S.C § 1158(a)(3) states that no court shall

have jurisdiction to review the agency's finding that an

asylum application was untimely under

(a)(2)(B). Notwithstanding that provision, federal courts

retain jurisdiction to review “constitutional claims” and

“questions of law.”

(a)(2)(D). Here, Chen

does not address the jurisdictional bar, but asserts that the

documents and testimony she offered to the IJ constituted

“clear and convincing evidence as to the date of her arrival

into the [U]nited States.” Petitioner Br. 7. As her

argument merely “disputes the correctness of [the] IJ's fact-

finding or the wisdom of his exercise of discretion and raises

neither a constitutional claim nor a question of law,” we

lack jurisdiction to review it. Barco-Sandoval v. Gonzales,

(2d Cir. 2008); see Ilyas Khan v. Gonzales,

(2d Cir. 2007) (explaining that this court's

“analysis of whether a petition presents reviewable claims

focuses on the nature of the claims raised and not on the

merits of those claims”). To the extent Chen raises a due

process claim by arguing that the IJ did not “allow” her

cousin to testify, Petitioner Br. 5, the record is to the

3 contrary. See Burger v. Gonzales,

(2d Cir.

2007) (“To establish a violation of due process, an alien

must show that she was denied a full and fair opportunity to

present her claims or that the IJ or BIA otherwise deprived

her of fundamental fairness.” (internal quotation marks

omitted)). At the hearing, Chen’s counsel represented that

the cousin would “testify in accordance with his [written]

statement,” so his live testimony was unnecessary. C.A.R.

110. Accordingly, because the IJ did not deny Chen an

opportunity to present witnesses, we reject her

constitutional challenge, and dismiss the petition to the

extent it seeks review of the denial of asylum relief.

Withholding of Removal and CAT Relief

To qualify for withholding of removal, an applicant must

demonstrate that her “life or freedom would be threatened in

[the] country [of removal]” on the basis of “race, religion,

nationality, membership in a particular social group, or

political opinion.”

(b)(3)(A); see

(b); Ivanishvili v. U.S. Dep’t of Justice,

(2d Cir. 2006). An applicant bears the burden of

demonstrating past persecution or a likelihood of future

persecution in order to establish eligibility for withholding

4 of removal. See

(b), (c)(2); Mufied v.

Mukasey,

(2d Cir. 2007). Where, as here,

“the trier of fact determines that the applicant should

provide evidence that corroborates otherwise credible

testimony, such evidence must be provided unless the

applicant does not have the evidence and cannot reasonably

obtain the evidence.”

(b)(1)(B)(ii). Before

denying a claim for insufficient corroboration, an IJ should

“point to specific pieces of missing, relevant documentation

and show that this documentation was reasonably available,”

provide the alien “an opportunity to explain the omission,”

and “assess any explanation that is given.” Chuilu Liu v.

Holder, 575 F.3d at 198 (internal quotations marks,

citations, and alterations omitted).

The agency found that Chen (1) failed to provide

sufficient corroborating evidence of past persecution, and

(2) did not establish that she will more likely than not be

subject to future persecution in China on account of her

religion.

In challenging these determinations here, Chen states

only that she was “detained, beaten, and tortured by the

police in China and she is afraid that if she is forced to

5 return to China she will be jailed and tortured again because

of her religion.” Petitioner Br. 14. As Chen does not

meaningfully challenge either basis for denying her

eligibility for withholding of removal, she has forfeited any

such challenge. See Chuilu Liu v. Holder, 575 F.3d at 195

(deeming argument forfeited where petitioner’s brief on

appeal did not mention CAT relief); Yueqing Zhang v. Gonzales,

, 545 n.7 (2d Cir. 2005) (holding claim for relief

abandoned where a petitioner “devote[d] only a single

conclusory sentence to the argument”).

In any event, the agency did not err in concluding that

Chen failed to provide reasonably available corroborating

evidence. Chen testified that she required medical treatment

after her detention, but failed to ask her family to obtain

records from the clinic she visited. See Chuilu Liu, 575

F.3d at 198 (“[T]he alien bears the ultimate burden of

introducing such evidence without prompting from the IJ.”).

The IJ’s finding that such records were reasonably available

was reinforced by Chen’s production of other medical records

in support of her contention that she entered the United

States in May 2009. The agency did not err in declining to

credit statements from Chen’s family and friend because they

6 were prepared for Chen’s removal proceedings and were written

by individuals who were not made available for cross-

examination. See Y.C. v. Holder,

(2d Cir.

2013) (deferring to agency decision to afford little weight

to petitioner’s husband’s unsworn letter); see also In re H-

L-H- & Z-Y-Z-,

(BIA 2010) (finding

letters from friends and family insufficient to support

alien’s claims because authors were interested witnesses not

subject to cross-examination), overruled on other grounds by

Hui Lin Huang v. Holder,

(2d Cir. 2012).

Furthermore, the agency reasonably found that the country

conditions evidence did not demonstrate a pattern or practice

of persecution of similarly situated Catholics so as to

corroborate Chen’s claimed fear of future persecution. The

country conditions evidence reflects local variation in

China’s treatment of Christians, and shows no persecution of

Christians in Chen’s home region. See Jian Hui Shao v.

Mukasey,

(2d Cir. 2008)

(upholding BIA’s no well-founded fear of future persecution

determination where enforcement of policy at issue varied by

region, and petitioner did not show enforcement in home region

amounting to persecution).

7 Accordingly, the agency did not err in finding that Chen

failed to satisfy her burden of establishing past persecution

or a likelihood of future persecution on account of her

religion. That finding is dispositive of CAT relief because

both claims were based on the same factual predicate. See

Paul v. Gonzales,

(2d Cir. 2006).

For the foregoing reasons, the petition for review is

DISMISSED in part and DENIED in part. 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.

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

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