10-2634-ag

Chen v. Holder 

BIA

Abrams, IJ

A088 123 794

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 Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of New

York, on the 19th day of July, two thousand eleven.

PRESENT:

JON O. NEWMAN,

RICHARD C. WESLEY,

PETER W. HALL,

Circuit Judges.

_______________________________________

YINGCHANG CHEN,

Petitioner,

v. 10-2634-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Lewis Hu, New York, New York.

FOR RESPONDENT: Tony West, Asst. Attorney General;

Carl H. McIntyre, Jr., Asst. Director;

Marion E. Guyton, Trial Attorney,

Office of Immigration Litigation,

Civil Division, United States Depart-
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ment of Justice, Washington, D.C.
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UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

Petitioner Yingchang Chen, a native and citizen of the

People’s Republic of China, seeks review of a June 8, 2010,

order of the BIA affirming the June 20, 2008, decision of

Immigration Judge (“IJ”) Steven R. Abrams, denying his

application for asylum, withholding of removal, and relief

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

Chen, No. A088 123 794 (B.I.A. June 8, 2010), aff’g No. A088

123 794 (Immig. Ct. N.Y. City June 20, 2008). We assume the

parties’ familiarity with the underlying facts and procedural

history of the case.

Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented and modified by the BIA.

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

The applicable standards of review are well-established. See

8 U.S.C. § 1252(b)(4)(B); see also Chuilu Liu v. Holder, 575

F.3d 193, 196 (2d Cir. 2009). 

Substantial evidence supports the agency’s conclusion

that Chen failed to meet his burden of proving eligibility for
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relief. Under the REAL ID Act, “[t]he testimony of the

applicant may be sufficient to sustain the applicant’s burden

without corroboration, but only if . . . the applicant’s

testimony is credible, is persuasive, and refers to specific

facts . . . . In determining whether the applicant has met the

applicant’s burden, the trier of fact may weigh the credible

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

§ 1158(b)(1)(B)(ii). It was not unreasonable for the agency

to require further corroborating evidence, as the corroborating documents Chen did present either failed to demonstrate

that his detention and fine were on account of his resistance

to a coercive population control program, or were inconsistent

with his testimony. See 8 U.S.C. § 1158(b)(1)(B)(i); see also

Chuilu Liu, 575 F.3d at 196-97. 

Accordingly, Chen was required to provide additional

medical records and evidence of the reasons for the fines

unless he could not “reasonably obtain the evidence.” 8

U.S.C. § 1158(b)(1)(B)(ii). The agency’s determination that

a particular piece of corroborating evidence was reasonably

available and should have been presented is a finding of fact,

which we review under the substantial evidence standard, and

will not reverse unless a reasonable trier of fact would be
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compelled to conclude that such corroborating evidence is

unavailable. See 8 U.S.C. § 1252(b)(4); Kyaw Zwar Tun v. INS,

445 F.3d 554, 563, 568 (2d Cir. 2006). 

Here, the IJ identified the type of corroborating

evidence that Chen should have presented to corroborate his

claim, including documents indicating that his wife was

permitted to remove her intrauterine device (“IUD”), any

indication that the fine Chen paid was a bail payment, or any

evidence that another fine was imposed. The BIA reiterated in

its decision the type of proof Chen could provide to corroborate his claim. Although Chen testified that he believed his

wife had medical records regarding her IUD, and that he could

call her and ask her to provide those records, he never

submitted the medical records as evidence. Furthermore,

although Chen contends that he and his wife did not keep the

medical records pertaining to her pregnancy, the agency

reasonably chose not to credit that explanation, given that

Chen was able to provide other medical evidence and testified

that his wife had other records. See Majidi v. Gonzales, 430

F.3d 77, 80-81 (2d Cir. 2005) (holding that agency need not

credit an applicant’s explanations unless those explanations

would compel a reasonable fact-finder to do so). In addition,
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Chen has acknowledged that the IJ indicated the type of

corroborating evidence expected regarding the fines, but has

not stated why that evidence was unavailable or why it was

unreasonable to expect such evidence. Consequently, substantial evidence supports the agency’s determination that Chen

could reasonably provide corroborating evidence, and its

decision to decline to credit his explanations for why he did

not provide such evidence. See 8 U.S.C. § 1252(b)(4); Majidi,

430 F.3d at 80-81; Diallo v. INS, 232 F.3d 279, 290 (2d Cir.

2000). Accordingly, because Chen’s evidence conflicted with

his testimony and because he failed to submit reasonably

available corroborating evidence, the IJ reasonably determined

that his testimony alone could not establish past persecution

or a well-founded fear of future persecution, and thus that he

had failed to meet his burden of proof for asylum or withholding of removal. See Chuilu Liu, 575 F.3d at 196-99. 

Finally, Chen argues that he is eligible for CAT relief

because it is more likely than not that he will be sterilized

if he returns to China. However, because Chen’s claim for CAT

relief rests on the same factual predicate as his asylum

claim, his CAT claim necessarily fails. See Paul v. Gonzales,

444 F.3d 148, 156 (2d Cir. 2006).
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For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument in

this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk