1 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No s . 12

- 2313 & 12

- 3819

___________ BING ZHE SUN ,

Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES , Respondent

_________________________ ___________ On Petition for Review of an Order of the Board of Immigration Appeals ( Agency No . A075

- 753

- 021 ) Immigration Judge: Honorable Rosalind K. Malloy

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

April 24, 2013 Before: FISHER, GARTH and ROTH , Circuit Judges

(Opinion filed : April 25, 2013 )

___________ OPINION

___________ PER CURIAM Bing Zhe Sun petitions for review of his final order of removal and the order of the Board of Immigration App eals (“BIA”) denying his motion for reconsideration and2

reopening. We will deny the petition s . I. Sun is a citizen of China who entered the United States in 2001 and who concedes that he is removable for overstaying his visa. Sun applied for asylum, wit hholding of removal and relief under the Convention Against Torture on the ground s that Chinese officials persecuted him for practicing Falun Gong and that he fears such persecution i n the future

. In his application , Sun claimed that Chinese officials int errogated, “hit” and “tortured” him and placed him jail to await trial, where he remained until his family “bailed [him] out.” In an updated application filed by different counsel, Sun provided a somewhat different account, claiming that Chinese officials (on a different date) beat him, shocked him with an electric baton and pulled his tongue with pliers. He further
claimed that his brother

- in

- law was a high

- ranking official and secu red his release after six hours , and that he was hospitalized for one wee k thereafter.
At his hearing, Sun testified consistently with his updated application and offered some evidence that he practices Falun Gong in the United States

. He also testified that his visible facial scars were caused by his beating in China. T he I mmigration Judge (“IJ”) denied Sun‟s claims for lack of corroboration, and the BIA agreed and dismissed his appeal. Through still different counsel, Sun both petitioned this Court for review and filed a motion for reconsideration and reopening with the BI A , which the BIA denied.3

Sun petitions for review of that ruling as well

. 1
II. Sun raises two primary challenges to his underlying order of removal. He argues first that the IJ a nd BIA erred in relying on the statement he submitted with his first applic ation and should have deemed him credible

. Sun did not raise any argument regarding reliance on his initial application before the BIA in either his appeal or his motion to reconsider and reopen, and he cites no authority in support of his arguments on th at point on review. As the Government argues, however, we need not address the m because, even if Sun is assumed to be credible, the BIA‟s conclusion that he failed to adequately corroborate his claim is independently dispositive as explained in the margin

. 2

1 We have jurisdiction under 8 U.S.C. § 1252(a)(1). We review the BIA ‟s order of removal but may look to that of the IJ to the extent that the BIA affirmed the IJ‟s conclusions. See Sandie v. Att‟y Gen. , 562 F.3d 246, 250 (3d Cir. 2009). We review factual findings fo r substantial evidence and treat them as “„conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.‟” Id. at 251 (quoting 8 U.S.C. § 1252(b)(4)(B)). We re view legal issues de novo. See id. We review the denial of motions for reconsideration and reopening for abuse of discretion. See Pllumi v. Att‟y Gen. , 642 F.3d 155, 158 (3d Cir. 2011).

2 Neither the IJ nor the BIA made an express credibility determina tion. The IJ noted several inconsistencies between Sun‟s testimony and his first application, but she also stated that he testified credibly regarding the history of Falun Gong in China and identified the lack of corroboration as the “greater weakness” of his case. (IJ Dec. at 16.) The BIA concluded that the IJ “effectively determined that [Sun] did not present a credible claim,” but the BIA also went on to conclude that , “moreover,” Sun had not corroborated his claim. (BIA Sept. 25, 2012 Dec. at 1

- 2 .) There is thus no indication that either the IJ‟s or BIA‟s corroboration analysis was influenced by the issue of credibility in any way. Compare Miah v. Ashcroft , 346 F.3d 434, 440 (3d Cir. 2003) (remanding where BIA reversed IJ‟s adverse credibility dete rmination but adopted IJ‟s corroboration analysis that was expressly based on th at credibility determination ), with Sandie , 5624

Sun challenges the BIA‟s corroboration analysis as well. The substantive provision of the REAL ID Act regarding corroboration does not apply in this case, but even before the REAL ID Act we recognized that credible applicants may be required to submit corroborating evidence so long as the agency undertakes the requisite three

- part inquiry. S ee Sandie , 562 F.3d at 252

- 53. The agency did so in this case and concluded that Sun had not adequately corroborated either his claim about past mistreatment in
C hina or his practice of Falun Gong in the United States. With regard to Sun‟s claim of past mistreatment, the IJ and BIA concluded that he did not present any evidence corroborating his claim at all

— i.e., any statements from his brother

- in

- law or family

m embers remaining in China , any records of the medical treatment he claimed to receive in China, or any medical records from a doctor in the United States regarding the possible cause of his scars. With regard to Sun‟s practice of Falun Gong in the United States, the IJ concluded that Sun presented no statements or testimony from any Falun Gong leaders and no testimony from fellow Falun Gong practitioners

. Sun raises what we construe as two arguments on this issue. First, he argues that the evidence he su bmitted made it unreasonable for the agency to require more. That evidence consisted of statement s from two Falun Gong practitioners in the United States and photographs of Sun at what he claimed were two Falun Gong events. Sun characterizes the agency‟s decision to require more evidence as “nitpicking,” but we

F.3d at 251

- 52 (distinguishing Miah and holding that the BIA is not required to address credibility where the IJ‟s corroboration analysis did not depend on credibility).5

disagree. As the IJ explained, none of this evidence corroborate s Sun‟s claim about past
mistreatment in China

. Sun argues that his facial scars constitute sufficient corroboration, but it was no t unreasonable for the IJ to require some evidence of how they were caused. See Sandie , 562 F.3d at 253 (declining to disturb IJ‟s requirement that alien corroborate origin of a scar on his back). Second, Sun also argues that the agency unreasonably reje cted his explanations for failing to provide more evidence. The IJ and BIA adequately addressed those explanations, and Sun‟s arguments in this regard are not persuasive. For example, Sun
testified before the IJ that he had not requested any statements f rom relatives in China out of fear that the Chinese government monitors their telephone calls and had not requested any testimony from Falun Gong practitioners in the United States because they too fear Chinese surveillance. He ultimately testified that h e had not requested medical records from China for the same reason. The IJ found Sun‟s explanations implausible and noted
that Chinese Falun Gong petitioners frequently introduce such evidence in support of their claims. Sun essentially repeats his expla nations on review, but we cannot say that any reasonable adjudicator would be compelled to accept them. Indeed, Sun‟s explanations would essentially excuse Chinese Falun Gong practitioners from offering any corroborating evidence of this nature

. Cf. Dong v. Att‟y Gen. , 638 F.3d 223, 230 (3d Cir. 2011) ( addressing Chinese petitioner‟s submission of , inter alia, a family member‟s
statement and medical records from China and medical records from the United States). Finally, Sun challenges the BIA‟s denial o f his motion for reconsideration and6

reopening. Sun argues that the BIA‟s ruling was influenced by its previous reliance on his initial asylum application . There is no indication that such is the case , however, a nd even if there were Sun did not challeng e the agency‟s reliance on his initial application in
either his appeal to the BIA or his motion for reconsideration and reopening. Sun also
asserts that the BIA failed to adequately address his evidence, but he does not specify what he believes the BIA o verlooked and our review of the record reveals no abuse of discretion in this regard. To the contrary, the BIA reasonably explained that Sun‟s additional evidence raise s additional concerns because the two statements he submitted refer to the individual w ho allegedly secured his release as his “nephew,” not his brother

in

- law as Sun testified , and were ot herwise inconsistent with his explanations for not submitting evidence before

. Sun acknowledges these concerns but does not address them except to blame them on the “difficulties and pitfalls” of seeking documents from overseas and the IJ‟s decision to require corroboration in the first place. (Pet‟r‟s Br. at 29 n.7.) We are not persuaded. For these reasons, we will deny Sun‟s petitions for review. Sun ‟s request for oral argument is denied as well.