17-3984 Gao v. Barr BIA Vomacka, IJ A206 289 438 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 27th day of January, two thousand twenty.

PRESENT: ROBERT A. KATZMANN, Chief Judge, PETER W. HALL, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

YUSEN GAO, Petitioner,

v. 17-3984 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Mouren Wu, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Nancy E. Friedman, Senior Litigation Counsel; Sharon M. Clay, 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 DENIED.

Petitioner Yusen Gao, a native and citizen of the

People’s Republic of China, seeks review of a November 27,

2017, decision of the BIA affirming a March 2, 2017, decision

of an Immigration Judge (“IJ”) denying Gao’s application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Yusen Gao, No. A

206 289 438 (B.I.A. Nov. 27, 2017), aff’g No. A 206 289 438

(Immig. Ct. N.Y. City Mar. 2, 2017). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA. See Xue Hong Yang

v. U.S. Dep’t of Justice,

(2d Cir. 2005).

The applicable standards of review are well established. See

(b)(4)(B); Chuilu Liu v. Holder,

(2d Cir. 2009); Yanqin Weng v. Holder,

(2d Cir. 2009). 2 “The testimony of the applicant may be sufficient to

sustain the applicant’s burden without corroboration, but

only if the applicant satisfies the trier of fact that the

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

to specific facts sufficient to demonstrate that the

applicant is a refugee.”

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

also Chuilu Liu,

. “In determining whether

the applicant has met [his] burden, the trier of fact may

weigh the credible testimony along with other evidence of

record. Where 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). The

agency did not err in determining that Gao failed to

corroborate his claim.

Although the BIA assumed credibility, the agency may

require corroboration of even credible testimony.

And

the agency properly identified the missing evidence. See

Chuilu Liu, 575 F.3d at 198–99. The agency noted that Gao

failed to document his testimony that he received medical

treatment at a clinic for injuries sustained in detention, he

could have presented letters from his parents or friends in 3 China to corroborate that he attended a Catholic church in

China or had problems with the government, and he did not

present evidence or call witnesses to confirm his church

attendance in the United States.

Gao did not establish that the evidence was unavailable.

See

; see also

(b)(4) (“No court

shall reverse a determination made by a trier of fact with

respect to the availability of corroborating evidence . . .

unless . . . a reasonable trier of fact is compelled to

conclude that such corroborating evidence is unavailable.”).

The IJ was not required to accept Gao’s explanation that he

could not obtain a report from a clinic in China because Gao

made no attempt to obtain such evidence. See

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

(2d

Cir. 2005) (“A petitioner must do more than offer a plausible

explanation for his inconsistent statements to secure relief;

he must demonstrate that a reasonable fact-finder would be

compelled to credit his testimony.” (internal quotation marks

and citations omitted)). Furthermore, Gao admitted that he

was able to obtain letters from his parents and a friend and

that his father could have written a letter earlier. Gao

also testified that he had friends, with whom he attended

church, but except for stating he wanted his priest as a 4 witness, he did not explain why his friends did not provide

letters or testify on his behalf.

Gao did not present any documentary evidence other than

identity documents, news articles and reports about

conditions in China, and a U.S. tax return. These documents

did not corroborate that he was a practicing Catholic or that

he was detained and harmed in China.

Accordingly, because a reasonable fact-finder would not

be compelled to conclude that Gao was unable to obtain

evidence that he was detained and harmed by the Chinese

government and that he attended Catholic churches in China

and the United States, the agency did not err in denying

relief on this basis. See

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

Chuilu Liu, 575 F.3d at 196–98. This finding was dispositive

of asylum, withholding of removal, and CAT protection because

all three claims were based on the same factual predicate.

See Lecaj v. Holder,

(2d Cir. 2010).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

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