22-6300-ag Chen v. Garland

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.

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 28th day of October, two thousand twenty-four. Present: GUIDO CALABRESI, WILLIAM J. NARDINI, Circuit Judges, PAUL A. ENGELMAYER, District Judge. 1 _____________________________________ MEIZI CHEN, Petitioner, v. 22-6300-ag MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. ____________________________________

For Petitioner: HENRY ZHANG, ESQ., Zhang and Associates, P.C., New York, NY.

For Respondent: BRIAN BOYNTON, Principal Deputy Assistant Attorney General; Melissa Neiman-Kelting, Assistant Director; M. Jocelyn Lopez Wright, Senior

1 Judge Paul A. Engelmayer of the United States District Court for the Southern District of New York, sitting by designation.

1 Litigation Counsel, 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 GRANTED IN PART and DENIED IN PART.

Petitioner Meizi Chen, a native and citizen of the People’s Republic of China, seeks review

of a May 27, 2022, decision of the BIA affirming a June 10, 2019, decision of an Immigration

Judge (“IJ”) denying his application for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Meizi Chen, No. A 209 937 047 (B.I.A. May 27,

2022), aff’g No. A 209 937 047 (Immigr. Ct. N.Y. City June 10, 2019). 2 We assume the parties’

familiarity with the underlying facts and procedural history.

Because the BIA summarily affirmed the IJ’s decision without an opinion, we have

reviewed the IJ’s decision. See Shunfu Li v. Mukasey,

(2d Cir. 2008). We

review factual findings for substantial evidence, and we review questions of law and the

application of law to fact de novo. Hong Fi Gao v. Sessions,

(2d Cir. 2018). “The

administrative findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude the contrary.”

(b)(4)(B).

“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.”

§ 1158(b)(1)(B)(ii). Accordingly, “in some cases . . . an applicant may be generally

2 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases, footnotes, and citations are omitted.

2 credible but his testimony may not be sufficient to carry the burden of persuading the fact finder of

the accuracy of his claim of crucial facts if he fails to put forth corroboration that should be readily

available.” Wei Sun v. Sessions,

(2d Cir. 2018); see also Pinel-Gomez v. Garland,

(2d Cir. 2022) (explaining that the agency may find testimony credible but

“still decide that the testimony falls short of satisfying the applicant’s burden, either because it is

unpersuasive or because it does not include specific facts sufficient to demonstrate that the applicant

is a refugee”). “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).

Before denying a claim solely on this basis, the IJ must “(1) point to specific pieces of missing

evidence and show that it was reasonably available, (2) give the applicant an opportunity to explain

the omission, and (3) assess any explanation.” Wei Sun,

. When the IJ has satisfied

these requirements, we may reverse the agency’s decision only if “a reasonable trier of fact is

compelled to conclude that such corroborating evidence is unavailable.”

(b)(4); see

Yan Juan Chen v. Holder,

(2d Cir. 2011).

Chen testified that he had been harassed, arrested, and beaten for unpaid debts in China,

which he had incurred the course of running a supermarket. The IJ stated that Chen “was credible

in the sense that his testimony was internally consistent,” but that “corroborating evidence was

needed here.” Certified Administrative Record (CAR) at 40. The IJ denied Chen relief on asylum

and withholding of removal based on Chen’s failure to corroborate that testimony.

We discern no error in the agency’s denial of asylum and withholding of removal. The only

corroboration that Chen provided was an identity document. The IJ identified various potentially

corroborating documents that were missing from the record while giving Chen an opportunity to

3 explain their absence, and the record does not compel the conclusion that those documents were

unavailable. Critically, Chen did not obtain a letter from a friend who allegedly saw him in jail,

arranged for his release, and encouraged him to flee the country to escape his abusers. Chen

explained that he had not asked for such a letter and said that he could have done so if he had

understood that it was necessary—not that a letter would have been unavailable if he had requested

it. The IJ is entitled to require corroboration of even credible testimony, and this letter would have

been particularly significant because Chen offered no other corroboration of the arrest that was the

basis for his claim of past persecution and torture. See Wei Sun,

. Chen also argues

that he should have been given more time to obtain the letter, but he never requested a continuance,

and he had the “burden of introducing [corroborating] evidence without prompting from the IJ.”

.

Chen also did not corroborate either the existence of the supermarket he claimed to have

owned and then sold to partially satisfy his debts, or his allegation that he had satisfied some of his

debts. The IJ asked why Chen had not asked former customers for corroborating letters (after he

testified that he was not in contact with his ex-wife and children, with whom he had operated the

business, and that the business records were inaccessible). Chen responded that time had elapsed

and that he had not attempted to obtain letters. The passage of time, alone, does not compel the

conclusion that Chen could not have obtained a letter from someone who knew about a store he had

purportedly operated for four years. And when asked why he did not obtain records from the banks

he claimed to have paid, Chen testified that the banks could receive calls only from inside China and

that he did not know if they could be contacted over the internet—that is, he did not try to obtain

these records, and thus did not know if an attempt would have been futile.

4 Because Chen’s asylum and withholding of removal claims were premised on the same facts,

and the agency permissibly concluded that he failed to establish those facts, the agency’s

corroboration finding is dispositive of relief on those claims. See Lecaj v. Holder,

(2d Cir. 2010).

With respect to the CAT claim, however, we reach a different conclusion. The only basis

that the IJ articulated for rejecting this claim was that the mistreatment to which Chen had been

subjected “did not rise to the level of torture,” and that “he was never harmed in the past to a degree

constituting torture.” CAR at 42. We limit our review of the agency decision solely to the “grounds

invoked by the agency.” SEC v. Chenery Corp.,

(1947). Here, with respect to

the CAT claim, the IJ did not make an adverse credibility finding or otherwise state that Chen had

failed to persuade the IJ that the events in question had actually transpired; to the contrary, his ruling

could be read as accepting Chen’s testimony for purposes of his CAT claim. For example, when

addressing Chen’s CAT claim, the IJ stated that Chen’s “fear of the Chinese Police is understandable

given past events,”

—a statement that appears to give credence to Chen’s testimony that such

“past events” actually occurred. Similarly, the IJ arguably accepted Chen’s testimony that the police

had coerced him to repay his debts, when the IJ observed that Chen “did not show that the police are

interested in doing anything to him other than ensuring that he pays off the debt that he owes.”

In concluding that Chen was not more likely than not to be tortured if he were to return to China, the

IJ seemed to rely solely on the conclusion that Chen’s maltreatment at the hands of the police had

not been severe enough to constitute torture. In this regard, the IJ simply stated that “[w]ithout

minimizing [Chen] being poked or struck by a police baton on one occasion, that mistreatment did

not rise to the level of torture as [Chen] did not seek professional medical treatment nor did he testify

to any lasting injuries from this event.”

If the IJ did indeed accept Chen’s testimony as true for

5 purposes of his CAT claim, as the text of the ruling suggests, then the CAT analysis is flawed because

it did not consider the additional deprivations to which Chen testified he had been subjected—

including that he had been detained for three days in a Chinese police station without food and water.

Because the record suggests that, for purposes of the CAT claim, the IJ accepted Chen’s testimony

but did not consider the totality of the misconduct that Chen testified that he suffered, we remand

the case to the BIA with direction to further remand to the IJ for reconsideration of Chen’s CAT

claim.

* * *

For the foregoing reasons, the petition for review is DENIED with respect to Chen’s

asylum and withholding of removal claims, and is GRANTED for further proceedings on his CAT

claim consistent with this summary order.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

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