18-3353 Wei v. Wilkinson BIA Hom, IJ A205 182 341 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 18th day of February, two thousand twenty-one. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 SUSAN L. CARNEY, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 FENGYING WEI, 14 Petitioner, 15 16 v. 18-3353 17 NAC 18 ROBERT M. WILKINSON, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________

1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Robert M. Wilkinson is automatically substituted as Respondent. 1 FOR PETITIONER: Jed S. Wasserman, Esq., New York, 2 NY. 3 4 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 5 Assistant Attorney General; 6 Anthony P. Nicastro, Assistant 7 Director; Ilana J. Snyder, Trial 8 Attorney, Office of Immigration 9 Litigation, United States 10 Department of Justice, Washington, 11 DC.

12 UPON DUE CONSIDERATION of this petition for review of a

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

14 ORDERED, ADJUDGED, AND DECREED that the petition for review

15 is DENIED.

16 Petitioner Fengying Wei, a native and citizen of the

17 People’s Republic of China, seeks review of an October 4,

18 2018, decision of the BIA affirming a September 20, 2017,

19 decision of an Immigration Judge (“IJ”) denying Wei’s

20 application for asylum, withholding of removal, and relief

21 under the Convention Against Torture (“CAT”). In re Fengying

22 Wei, No. A 205 182 341 (B.I.A. Oct. 4, 2018), aff’g No. A 205

23 182 341 (Immig. Ct. N.Y. City Sept. 20, 2017). We assume the

24 parties’ familiarity with the underlying facts and procedural

25 history.

26 Under the circumstances of this case, we have reviewed

27 the IJ’s decision as modified by the BIA. See Yan Chen v.

2 1 Gonzales,

(2d Cir. 2005); Xue Hong Yang v.

2 U.S. Dep’t of Justice,

(2d Cir. 2005).

3 Because the BIA assumed Wei’s credibility, so do we. Yan

4 Chen, 417 F.3d at 271–72. The standards of review are well

5 established. See Chuilu Liu v. Holder,

(2d

6 Cir. 2009).

7 An IJ may require an asylum applicant to provide evidence

8 that corroborates otherwise credible testimony in order to

9 meet the applicant’s burden of proof for asylum. 8 U.S.C.

10 § 1158(b)(1)(B)(ii). “[A] failure to corroborate can

11 suffice, without more, to support a finding that an

12 [applicant] has not met his burden of proof.” Chuilu Liu,

13

n.5; see also Wei Sun v. Sessions,

(2d Cir. 2018). When an IJ determines that

15 corroborating evidence is necessary, the applicant must

16 provide the evidence “unless the applicant does not have the

17 evidence and cannot reasonably obtain the evidence.” 8

(b)(1)(B)(ii). We may reverse a finding that

19 corroboration is lacking only if “a reasonable trier of fact

20 is compelled to conclude that such corroborating evidence is

21 unavailable.”

§ 1252(b)(4).

3 1 While the agency must identify what reasonably available

2 evidence should have been provided and must assess the

3 applicant’s explanations for any missing evidence, it is the

4 applicant’s burden to provide the evidence or an adequate

5 explanation for any failure to obtain it. Chuilu Liu, 575

6 F.3d at 198-99. To overcome the need to corroborate, the

7 applicant’s explanations must compel a conclusion that the

8 requested evidence is not reasonably available. See 8

(b)(4); Yan Juan Chen v. Holder,

,

10 253 (2d Cir. 2011).

11 The agency reasonably concluded that Wei failed to

12 sufficiently corroborate that she was arrested, beaten,

13 required to pay a bond for her release, and forced to report

14 to a police station more than 20 times by Chinese authorities

15 after she allegedly was caught attending a Christian house

16 church meeting in 2011. The IJ did not err in declining to

17 credit letters from Wei’s husband and father because her

18 husband was present but declined to testify at Wei’s hearing

19 and her father is an interested witness who was not subject

20 to cross-examination. See Yan Juan Chen,

21 (upholding agency’s rejection of applicant’s argument that

22 her husband was unavailable to testify on her behalf in asylum

4 1 proceedings due to his unlawful immigration status); Matter

2 of H-L-H & Z-Y-Z,

(BIA 2010) (giving

3 diminished evidentiary weight to letters from relatives

4 because they were “interested witnesses who were not subject

5 to cross-examination”), rev’d on other grounds by Hui Lin

6 Huang v. Holder,

(2d Cir. 2012).

7 The agency also reasonably determined that Wei could have

8 provided a medical report from the hospital where she had her

9 injuries treated and evidence of a fine because she testified

10 that she had medical report and a friend paid the fine for

11 her release. When asked why she did not provide this

12 evidence, she did not allege it was unavailable and conceded

13 she had not tried to obtain it. Her explanation that it had

14 been a long time since the events does not compel the

15 conclusion that the evidence was unavailable. See 8 U.S.C.

16 §§ 1158(b)(1)(B)(ii), 1252(b)(4).

17 Because the agency identified corroborating evidence

18 that should have been provided and Wei has not shown that

19 such evidence was unavailable, she has not established error

20 in the agency’s conclusion that she did not meet her burden

21 of proof. See

(b)(1)(B)(ii); Chuilu Liu, 575

22 F.3d at 198. Because she failed to meet her burden of proof

5 1 for asylum, she “necessarily” failed to meet the higher burden

2 for withholding of removal and CAT relief. Lecaj v. Holder,

3

, 119–20 (2d Cir. 2010).

4 Finally, we reject Wei’s contention that the IJ’s

5 exclusion of late-filed evidence deprived her of due process.

6 “To establish a violation of due process, an [applicant] must

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

8 present her claims,” Burger v. Gonzales,

, 134

9 (2d Cir. 2007) (internal quotation marks omitted), and

10 “allege some cognizable prejudice fairly attributable to the

11 challenged process,” Garcia-Villeda v. Mukasey,

,

12 149 (2d Cir. 2008) (internal quotation marks omitted). As

13 Wei concedes, except for her daughter’s certificate of

14 baptism, the late-filed documents were clearer copies of

15 documents previously admitted into evidence. She has not

16 demonstrated how these late documents relate to the

17 corroboration issues that the agency’s decision relied on,

18 and therefore she has not established prejudice as required

19 to prevail on a due process claim. See

6 1 For the foregoing reasons, the petition for review is

2 DENIED. All pending motions and applications are DENIED and

3 stays VACATED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court

7