18-229 Chen v. Barr BIA Brennan, IJ A202 047 998

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 16th day of December, two thousand nineteen. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 PETER W. HALL, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 ZHI XUN CHEN, 14 Petitioner, 15 16 v. 18-229 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Dehai Zhang, Flushing, NY. 24 25 FOR RESPONDENT: Joseph H. Hunt, Assistant 26 Attorney General; Jessica E. 27 Burns, Senior Litigation Counsel; 28 Rosanne M. Perry, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of 31 Justice, Washington, 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 DISMISSED in part and DENIED in part.

5 Petitioner Zhi Xun Chen, a native and citizen of the

6 People’s Republic of China, seeks review of a January 5, 2018,

7 decision of the BIA affirming a May 2, 2017, decision of an

8 Immigration Judge (“IJ”) denying his application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Zhi Xun Chen, No. A202 047

11 998 (B.I.A. Jan. 5, 2018), aff’g No. A202 047 998 (Immig. Ct.

12 N.Y. City May 2, 2017). We assume the parties’ familiarity

13 with the underlying facts and procedural history.

14 A. Scope and Standards of Review

15 Under the circumstances of this case, we have considered

16 both the IJ’s and the BIA’s opinions “for the sake of

17 completeness.” Wangchuck v. Dep’t of Homeland Security, 448

(2d Cir. 2006). The applicable standards of

19 review are well established. See

(b)(4)(B);

20 Wei Sun v. Sessions,

(2d Cir. 2018).

21 B. Asylum: One Year Bar

22 An alien is ineligible for asylum “unless the alien

23 demonstrates by clear and convincing evidence that the

2 1 application has been filed within 1 year after the date of

2 the alien’s arrival in the United States.” 8 U.S.C.

3 § 1158(a)(2)(B). An application may be considered outside

4 the deadline “if the alien demonstrates . . . extraordinary

5 circumstances relating to the delay,” 8 U.S.C.

6 § 1158(a)(2)(D), and the application is filed within a

7 reasonable time,

(a)(4)(ii), (5).

8 Our jurisdiction to review the agency’s findings

9 regarding the timeliness of an asylum application and the

10 circumstances excusing untimeliness is limited to

11 “constitutional claims or questions of law.” 8 U.S.C.

12 § 1252(a)(2)(D); see

(a)(3). Chen admits that

13 the record was unclear as to his entry, and he has not raised

14 a constitutional or legal challenge to the agency one-year

15 bar determination. Accordingly, we lack jurisdiction to

16 review that determination and dismiss the petition to that

17 extent.

18 C. Withholding of Removal and CAT

19 “The testimony of the applicant may be sufficient to

20 sustain the applicant’s burden without corroboration, but

21 only if the applicant satisfies the trier of fact that the

22 applicant’s testimony is credible, is persuasive, and refers

23 to specific facts sufficient to demonstrate that the

3 1 applicant is a refugee.”

(b)(1)(B)(ii); see

2 also

§ 1231(b)(3)(C); Wei Sun,

. “In

3 determining whether the applicant has met the applicant’s

4 burden, the trier of fact may weigh the credible testimony

5 along with other evidence of record. Where the trier of fact

6 determines that the applicant should provide evidence that

7 corroborates otherwise credible testimony, such evidence must

8 be provided unless the applicant does not have the evidence

9 and cannot reasonably obtain the evidence.” 8 U.S.C.

10 § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C).

11 The IJ reasonably required evidence to corroborate Chen’s

12 testimony given that his credibility was questionable and his

13 testimony unpersuasive. See

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

14 (iii); see also Wei Sun,

. For example, the

15 IJ reasonably found Chen’s demeanor hesitant and evasive at

16 times, his testimony regarding the alleged beating and his

17 resulting injuries lacked details, and his testimony

18 regarding the date he sought medical treatment was

19 inconsistent with his medical evidence. Further, the agency

20 did not err in finding that Chen failed to adequately

21 corroborate his claim because, other than his evidence that

22 was inconsistent with his testimony, he submitted only an

23 unsworn letter from a friend, which the agency was not

4 1 compelled to credit. See Y.C. v. Holder,

, 334

2 (2d Cir. 2013).

3 For these reasons, the agency did not err in finding that

4 Chen failed to satisfy his burden of establishing past

5 persecution or a likelihood of persecution with sufficient

6 corroboration. See

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

7 1231(b)(3)(C); see also Wei Sun,

. That finding

8 is dispositive of withholding of removal and CAT relief

9 because those claims were based on the same factual

10 predicate.* See Paul v. Gonzales,

, 156–57 (2d

11 Cir. 2006).

12 For the foregoing reasons, the petition for review is

13 DISMISSED in part and DENIED in part. All pending motions

14 and applications are DENIED and stays VACATED.

15 FOR THE COURT: 16 Catherine O’Hagan Wolfe 17 Clerk of Court

* Contrary to the BIA’s and Government’s contention that Chen waived CAT, the IJ provided no new basis for denying CAT relief other than the lack of record evidence and thus Chen’s challenge to the denial of withholding necessarily includes a challenge to the denial of CAT. 5