20-1970 Wei v. Garland BIA Wright, IJ A205 809 340 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 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 22nd day of September, two thousand twenty- 5 two. 6 7 PRESENT: 8 PIERRE N. LEVAL, 9 JOSEPH F. BIANCO, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 YANG CAI WEI, 15 Petitioner, 16 17 v. 20-1970 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Gary J. Yerman, New York, NY. 25 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Brianne Whelan 28 Cohen, Senior Litigation Counsel; 1 Todd J. Cochran, Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, DC.

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DENIED.

9 Petitioner Yang Cai Wei, a native and citizen of the

10 People’s Republic of China, seeks review of a May 28, 2020,

11 decision of the BIA affirming a May 23, 2018, decision of an

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

13 withholding of removal, and relief under the Convention

14 Against Torture (“CAT”). In re Yang Cai Wei, No. A 205 809

15 340 (B.I.A. May 28, 2020), aff’g No. A 205 809 340 (Immig. Ct.

16 N.Y. City May 23, 2018). We assume the parties’ familiarity

17 with the underlying facts and procedural history.

18 We have reviewed the IJ’s decision as supplemented by

19 the BIA. See Yan Chen v. Gonzales,

(2d

20 Cir. 2005) (“Where the BIA adopts the decision of the IJ and

21 merely supplements the IJ’s decision, . . . we review the

22 decision of the IJ as supplemented by the BIA.”). The

23 applicable standards of review are well established. See 8

2

(b)(4)(B) (“the administrative findings of fact

2 are conclusive unless any reasonable adjudicator would be

3 compelled to conclude to the contrary”); Wei Sun v. Sessions,

4

(2d Cir. 2018) (reviewing factual findings

5 for substantial evidence and questions of law de novo).

6 An applicant bears the burden of proof to show

7 eligibility for asylum.

(b)(1)(B)(i). “The

8 testimony of the applicant may be sufficient to sustain the

9 applicant’s burden without corroboration, but only if the

10 applicant satisfies the trier of fact that the applicant’s

11 testimony is credible, is persuasive, and refers to specific

12 facts sufficient to demonstrate that the applicant is a

13 refugee . . . . Where the trier of fact determines that the

14 applicant should provide evidence that corroborates otherwise

15 credible testimony, such evidence must be provided unless the

16 applicant does not have the evidence and cannot reasonably

17 obtain the evidence.”

§ 1158(b)(1)(B)(ii). A lack of

18 corroboration can be an independent basis for the denial of

19 relief if the agency identifies reasonably available evidence

20 that should have been presented. See Wei Sun,

28–31. Before denying a claim solely for failure to provide

3 1 corroborating evidence, the IJ must, either in his decision

2 or otherwise in the record, “(1) point to specific pieces of

3 missing evidence and show that it was reasonably available,

4 (2) give the applicant an opportunity to explain the omission,

5 and (3) assess any explanation given.”

. “No court

6 shall reverse a determination made by a trier of fact with

7 respect to the availability of corroborating evidence . . .

8 unless the court finds . . . that a reasonable trier of fact

9 is compelled to conclude that such corroborating evidence is

10 unavailable.”

(b)(4).

11 First, Wei argues that the IJ failed to notify him that

12 his corroborating documents were insufficient, but he failed

13 to exhaust this argument on appeal to the BIA. See Lin Zhong

14 v. U.S. Dep’t of Justice,

(2d Cir. 2007)

15 (“Judicially-imposed doctrines of issue exhaustion . . . will

16 usually mean that issues not raised to the [Board] will not

17 be examined by the reviewing court.” (internal citation

18 omitted)). Even assuming exhaustion, the IJ did not err in

19 finding that Wei failed to meet his burden of proof. Advance

20 notice of the need for specific corroboration and an

21 opportunity to gather the evidence are not required, “because

4 1 the alien bears the ultimate burden of introducing such

2 evidence without prompting from the IJ.” Wei Sun,

at 31 (quotation marks omitted)).

4 The IJ followed the procedure for denying a claim based

5 on lack of corroboration. First, the IJ identified the

6 missing evidence, namely proof that Wei passed out fliers for

7 his church and documentation of his proselytizing via WeChat.

8 Second, the IJ asked Wei if he had “any proof that [he]

9 pass[ed] out fliers” or “posted on WeChat.” Wei did not

10 demonstrate that evidence that he passed out fliers was

11 unavailable because he failed to provide photographs that he

12 said he had, and he did not allege that his church or fellow

13 church member who confirmed church attendance could not have

14 confirmed his other activities. As for the WeChat messages,

15 Wei claimed he had the messages on his phone in Chinese, and

16 he did not allege that he was unable to print them and have

17 them translated. Because this evidence of his public

18 religious activities and proselytizing was available, the IJ

19 did not err in concluding that Wei failed to meet his burden

20 of proof. Id.; see also

(b)(4). This

21 evidence was material to Wei’s allegation that the Chinese

5 1 government was aware of would become aware of his practice of

2 Christianity. See Hongsheng Leng v. Mukasey,

,

3 143 (2d Cir. 2008) (holding that applicant whose claim is

4 based on activities undertaken in the United States must

5 demonstrate “a reasonable possibility” that “authorities in

6 his country of nationality are either aware of his activities

7 or likely to become aware of his activities.” (quotation

8 marks omitted)).

9 Second, Wei argues that the evidence he provided was

10 sufficient to corroborate his testimony. The agency was not

11 required to credit letters from Wei’s family members and

12 fellow church members in the United States because the letters

13 were written by interested parties or parties not available

14 for cross-examination. See Y.C. v. Holder,

, 334

15 (2d Cir. 2013) (holding that weight of documentary evidence

16 is within agency’s discretion and deferring to the agency’s

17 decision to give limited weight to letter from

18 applicant’s spouse). Wei presented photographs of himself

19 at church events, but nothing in the photographs identified

20 Wei or others as Christians, nor did the photographs depict

21 proselytizing or confirm that Wei proselytized on WeChat.

6 1

(“We defer to the agency’s evaluation of the weight

2 to be afforded an applicant’s documentary evidence.”).

3 Because the IJ identified reasonably available evidence

4 that Wei should have presented to confirm material aspects of

5 his claim—specifically his public expression of his

6 Christianity and his proselytizing to individuals in China—

7 the agency did not err in concluding that Wei failed to meet

8 his burden. See

(b)(1)(B)(ii). Because Wei

9 failed to meet his burden of proof for asylum,

10 he “necessarily” failed to meet the higher burden for

11 withholding of removal and CAT relief. Lecaj v. Holder, 616

, 119–20 (2d Cir. 2010).

13 For the foregoing reasons, the petition for review is

14 DENIED. All pending motions and applications are DENIED and

15 stays VACATED.

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court

7