18-3334 Wu v. Garland BIA Cassin, IJ A205 218 997 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 18th day of March, two thousand twenty-one.

PRESENT: REENA RAGGI, RICHARD C. WESLEY, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________

SHIGUANG WU, Petitioner,

v. 18-3334 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. 1 _____________________________________

FOR PETITIONER: Gary J. Yerman, Esq., The Yerman Group, LLC, New York, NY.

1The Clerk of Court is respectfully directed to amend the caption as set forth above. FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Briane Whelan Cohen, Senior Litigation Counsel; Matthew A. Spurlock, 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 Shiguang Wu, a native and citizen of the

People’s Republic of China, seeks review of an October 12,

2018, decision of the BIA affirming a September 26, 2017,

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

application for asylum, withholding of removal, and relief

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

Wu, No. A 205 218 997 (B.I.A. Oct. 12, 2018), aff’g No. A 205

218 997 (Immig. Ct. N.Y.C. Sept. 26, 2017). We assume the

parties’ familiarity with the underlying facts and procedural

history.

Under the circumstances of this case, we have reviewed

both the IJ’s and BIA’s decisions “for the sake of

2 completeness.” Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir. 2006). While Wu argues that the agency

denied relief on credibility grounds, the BIA affirmed the

IJ’s dispositive ruling that Wu failed to corroborate his

claim with reliable and reasonably available evidence. The

applicable standards of review are well established. See

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

(2d Cir. 2009) (reviewing factual findings

underlying burden of proof determinations for substantial

evidence).

The agency did not err in finding that Wu failed to

satisfy his burden of proof. “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, 575 F.3d at 196–

97. “In determining whether the applicant has met [his]

burden, the trier of fact may weigh the credible testimony

along with other evidence of record.” 8 U.S.C.

3 § 1158(b)(1)(B)(ii). Moreover, the trier of fact may require

corroboration of “otherwise credible testimony,” and “such

evidence must be provided unless the applicant does not have

the evidence and cannot reasonably obtain the evidence.” Id.

“No court shall reverse a determination made by a trier of

fact with respect to the availability of corroborating

evidence . . . unless the court finds . . . that a reasonable

trier of fact is compelled to conclude that such corroborating

evidence is unavailable.”

(b)(4).

As evidence of his past persecution, Wu submitted a fine

receipt from the Chinese police, a medical certificate of his

hospital visit, and photographs of his injuries. The IJ did

not err in finding these documents insufficient to carry Wu’s

burden, especially because the medical certificate was

inconsistent with his asylum statement and testimony as to

when and how long he was treated, and it was unclear who took

the photographs and how they arrived in the United States.

See Y.C. v. Holder,

(2d Cir. 2013) (“We

generally defer to the agency’s evaluation of the weight to

be afforded an applicant’s documentary evidence.”); Xiao Ji

Chen v. U.S. Dep’t of Justice,

(2d Cir.

4 2006) (stating that weight afforded applicant’s evidence in

immigration proceedings “lies largely within the discretion

of the IJ” (internal alterations and quotation marks

omitted)).

Given the lack of reliable evidence, the IJ properly

required additional corroborating evidence, which in this

case was reasonably available. See

(b)(1)(B)(ii), 1252(b)(4); Chuilu Liu, 575 F.3d at

198–99. While Wu explained that his sister in China did not

provide a written statement because she did not want her

employer to know her brother practiced Falun Gong, she mailed

him other documents related to his claim, and he could not

explain how his sister’s employer would discover any letter.

As to his membership in a protected group, Wu proffered

no evidence of his current Falun Gong practice, despite

claiming to have practiced daily in the United States with

others. His explanation—that he did not have enough time to

collect the evidence because he was busy with work—does not

compel a conclusion that such evidence was unavailable.

(b)(4). And while his claim that some fellow

practitioners were afraid to come to immigration court was

5 plausible, his claim that others avoided providing written

statements again does not compel a conclusion that such

statements were unavailable.

Finally, despite Wu’s allegations that he had been

employed as a teacher for many years and that he was fired

from his teaching position as a result of his Falun Gong

practice, he provided no evidence, apart from a household

register listing his occupation, to corroborate his

employment or his termination. 2 Given the length of his

employment, the record does not compel the conclusion that no

evidence was available.

In sum, because Wu failed to provide reasonably available

corroborating evidence, the agency did not err in finding

that he failed to satisfy his burden for asylum. See

(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 196–99. That

finding is dispositive of asylum, withholding of removal, and

CAT relief because all three claims were based on the same

factual predicate. See Lecaj v. Holder,

, 119–

20 (2d Cir. 2010); Paul v. Gonzales,

, 156–57 (2d

Cir. 2006).

2His application and written statement reflect he worked as a teacher for “more than ten years,” but he testified that he taught for nearly 20 years. 6 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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