13-2539 

Wang v. Holder

 BIA

 Sichel, IJ 

 A088 527 745

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

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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 2nd day of October, two thousand fourteen.

PRESENT:

ROBERT A. KATZMANN,

Chief Judge,

RICHARD C. WESLEY

GERARD E. LYNCH,

Circuit Judges.

_____________________________________

ZHAOLIN WANG,

Petitioner, 

 v. 13-2539

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Guang Jun Gao, Esq., Flushing, NY.

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

General; John W. Blakeley, Senior

Litigation Counsel; David Schor,

Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.
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.

Zhaolin Wang, a native and citizen of China, seeks

review of a June 6, 2013, decision of the BIA affirming the

August 3, 2012, decision of an Immigration Judge (“IJ”),

which denied his application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). In re Zhaolin Wang, No. A088 527 745 (B.I.A. Jun.

6, 2013), aff’g No. A088 527 745 (Immig. Ct. N.Y.C. Aug. 3,

2012). We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

Under the circumstances of this case, we have reviewed

the BIA’s decision, and assume Wang’s credibility. See Yan

Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

standards of review are well established. See 8 U.S.C. §

1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

Cir. 2009).

Because Wang does not allege past harm, he has the

burden to prove that he has an objectively reasonable,

well-founded fear of future persecution. 8 U.S.C.

§ 1101(a)(42); Ramsameachire v. Ashcroft, 357 F.3d 169, 178

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(2d Cir. 2004). The applicant must make some showing that

the government is aware or is likely to become aware of the

activities that he alleges will lead to persecution. 

Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).

Although an alien’s testimony alone may be enough to

establish a fear of future persecution, the agency may

require corroboration of even credible testimony. 8 U.S.C.

§§ 1158(b)(1)(B)(ii), 1231(b)(3)(C). “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.” 8 U.S.C. § 1252(b)(4). The agency’s

determination that a particular piece of corroborating

evidence is available to the applicant (and thus whether it

should “reasonably be expected”) is a finding of fact to

which this Court defers under the substantial evidence

standard. Kyaw Zwar Tun v. INS, 445 F.3d 554, 563, 568 (2d

Cir. 2006); see also 8 U.S.C. § 1158(b)(1)(B)(ii).

We find no error in the agency’s determination that

Wang failed to establish a well-founded fear of future

persecution. Wang’s fear is based on his political activity

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in the United States on behalf of the Chinese Democracy and

Justice Party (“CDJP”). Wang testified before the agency,

and argues here, that he believes the Chinese government is

aware of his political activities, and provided two

explanations for his belief, neither of which is compelling. 

First, he asserted that, because he had published

various articles and engaged in various public protests, the

Chinese government would reasonably be expected to be aware

of his activities. However, it cannot be said that, based

upon this speculation alone, any reasonable factfinder would

be compelled to conclude that he faced a well-founded fear

of future persecution. Cf. 8 U.S.C. § 1252(b)(4)(B); Jian

Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005)

(holding that, absent solid support in the record, a

petitioner’s fear is “speculative at best”). Instead, the

BIA reasonably concluded that “the evidence does not

demonstrate that his activities have been sufficiently

visible or notable to come to the attention of Chinese

authorities.” Pet’r Special App’x 4.

Second, he claimed that his wife was visited by Chinese

police, who asked her to warn Wang to cease his activities

on behalf of the CDJP. He did not provide a letter from his

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wife to corroborate this claim, purportedly because his wife

was afraid to help him. This explanation, however, does not

suffice to demonstrate that the corroborating evidence is

unavailable, within the meaning of § 1252(b)(4),

particularly given that Chinese authorities allegedly told

Wang’s wife to communicate with him. Cf. Yan Juan Chen v.

Holder, 658 F.3d 246, 252-53 (2d Cir. 2011)(deferring to an

IJ’s conclusion that an alien was required to present her

husband as a witness to corroborate her claim). 

Furthermore, Wang’s argument that he lacked reasonable

notice that he should submit such a letter is meritless. 

The agency may not deny an alien’s claim for asylum for lack

of corroboration without first providing the alien notice of

what corroboration is necessary and an opportunity to cure

the deficiency. Ming Shi Xue v. BIA, 439 F.3d 111, 122 (2d

Cir. 2006) (“This notice requirement . . . was designed not

only to guard against arbitrary and excessive requests by an

IJ, but also, and equally importantly, to guarantee

applicants an opportunity to remedy the supposed evidentiary

gap.” (citation omitted)). But, an IJ is not obliged to do

so prior to rendering a decision on the application. Chuilu

Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009)(“But though

we require an IJ to specify the points of testimony that

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require corroboration, we have not held that this must be

done prior to the IJ's disposition of the alien's claim.”).

Here, the IJ properly identified, in its decision, the

deficiency it perceived in Wang’s evidence, to wit, the lack

of a letter or other statement from his wife, and expressly

found that such evidence was available to him. Moreover,

even assuming that the IJ was required to provide some

notice that it expected this letter to be produced, it

satisfied that obligation. At the January 2012 hearing at

which Wang testified regarding his wife’s interactions with

the police, the IJ asked whether a letter from Wang’s wife

was available. Wang was then given an additional

opportunity at the final hearing, eight months later, to

submit additional evidence, but declined to do so.

For the foregoing reasons, the petition for review is

DENIED, and Wang’s motion for a stay of removal is DENIED as

moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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