19-3347 Wu v. Wilkinson BIA Wright, IJ A206 287 902 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 23rd day of February, two thousand twenty-one.

PRESENT: PIERRE N. LEVAL, RICHARD J. SULLIVAN, STEVEN J. MENASHI, Circuit Judges. _____________________________________

HAIPENG WU, Petitioner,

v. 19-3347 NAC ROBERT M. WILKINSON, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. 1 _____________________________________

FOR PETITIONER: Mike P. Gao, Esq., Flushing, NY.

1 Pursuant to Fed. R. App. P. 43(c)(2), Robert M. Wilkinson is automatically substituted for former Attorney General William P. Barr. FOR RESPONDENT: [VACANT], Assistant Attorney General; Jeffrey C. Leist, Senior Litigation Counsel; Judith R. O’Sullivan, 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 Haipeng Wu, a native and citizen of the

People’s Republic of China, seeks review of a September 30,

2019 decision of the BIA affirming a March 1, 2018 decision

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

asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). In re Haipeng Wu, No.

A206 287 902 (B.I.A. Sept. 30, 2019), aff’g No. A 206 287 902

(Immig. Ct. N.Y. City Mar. 1, 2018). We assume the parties’

familiarity with the underlying facts and procedural history.

We have reviewed the IJ’s decision as supplemented by

the BIA. See Yan Chen v. Gonzales,

(2d

Cir. 2005). “We review the BIA’s factual findings under the

substantial evidence standard, including those underlying the 2 immigration court’s determination that an alien has failed to

satisfy his burden of proof.” Chuilu Liu v. Holder,

(2d Cir. 2009) (internal quotation marks omitted).

We find no error in the agency’s conclusion that Wu

failed to meet his burden of proof. “The testimony of the

applicant may be sufficient to sustain the applicant’s burden

without corroboration,” but the factfinder weighs the

testimony and other evidence and, “[w]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). An applicant’s failure to present

reasonably available corroboration “can suffice, without

more, to support a finding that an alien has not met his

burden of proof.” Chuilu Liu,

n.5. While an

IJ must “point[] to specific pieces of missing, relevant

documentation” and “show[] that this documentation was

reasonably available,” the law does not require the IJ to

identify missing evidence “prior to the IJ's disposition of

the alien's claim.”

; Wei Sun v. Sessions, 883

(2d Cir. 2018). Where the applicant has an

opportunity to explain the absence of that evidence and the

IJ assesses any explanation given, Wei Sun, 883 F.3d at 31,we

will remand only if “a reasonable trier of fact is compelled

to conclude that such corroborating evidence is unavailable,”

(b)(4). 1

Here, the agency reasonably determined that Wu failed to

adequately corroborate that he was a practicing Christian or

that he would have a well-founded fear of future religious

persectution. To begin, Wu failed to provide any evidence

from anyone who had direct knowledge of his recent religious

activities – an omission made more troubling by Wu’s

admittedly sporadic church attendence from May 2014 through

May 2017. Although Wu explained that his pastor was busy and

might have required payment for a letter and that other people

at his church were too afraid of immigration authorities to

provide statements, these explanations do not compel the

conclusion that such evidence was unavailable. See

Notably, Wu did not testify that his pastor refused to provide

1 Although Wu did not challenge the IJ’s corroboration finding when he

appealed to the BIA, we deem his challenge exhausted because the BIA considered the finding. See Xian Tuan Ye v. DHS,

, 296–97 (2d Cir. 2006). 4 a letter, and the fact that some individuals who attend his

church feared immigration authorities does not compel the

conclusion that none could have provided written statements

or testimony to corroborate Wu’s account. And even after the

IJ’s opinion carefully considered these glaring shortcomings

and rejected Wu’s explanations for them, Wu neither

challenged the IJ’s corroboration finding on appeal to the

BIA nor offered any further “explanation for the failure to

provide such corroborating evidence, either in a motion to

reopen or on appeal to the BIA.” See Chuilu Liu,

. Under these circumstances, the record does not compel

reversal of the agency’s findings.

Because Wu’s failure to meet his burden of proof as to

this sole basis for his fear of persecution or torture is

dispositive, see

(b)(1)(B)(i);

(c)(2), we do not reach the agency’s alternate

conclusion that, assuming Wu is a practicing Christian, he

failed to show a well-founded fear of persecution, see INS v.

Bagamasbad,

(1976) (“As a general rule courts

and agencies are not required to make findings on issues the

decision of which is unnecessary to the results they reach.”).

5 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

6