Wei v. Wilkinson

W
     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, 

417 F.3d 268

, 271 (2d Cir. 2005); Xue Hong Yang v.

 2   U.S. Dep’t of Justice, 

426 F.3d 520

, 522 (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, 

575 F.3d 193

, 196 (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,

13 575 F.3d at 198

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

883 F.3d 14

  23,   28   (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

18   U.S.C. § 1158(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.”

Id. § 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

 9   U.S.C. § 1252(b)(4); Yan Juan Chen v. Holder, 

658 F.3d 246

,

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, 658 F.3d at 253

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, 25 I. & N. Dec. 209, 215 (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, 

677 F.3d 130

(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 8 U.S.C. § 1158(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   

616 F.3d 111

, 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, 

498 F.3d 131

, 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, 

531 F.3d 141

,

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

id. 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




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