18-229 Chen v. Barr BIA Brennan, IJ A202 047 998 

### 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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 16 th**  **day of December, two thousand nineteen.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **PETER W. HALL,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **ZHI XUN CHEN,** 13 Petitioner **,** 14 15 **v. 18-229** 16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Dehai Zhang, Flushing, NY. 23 24 **FOR RESPONDENT:** Joseph H. Hunt, Assistant 25 Attorney General; Jessica E. 26 Burns, Senior Litigation Counsel; 27 Rosanne M. Perry, Trial Attorney, 28 Office of Immigration Litigation, 29 United States Department of 30 Justice, Washington, DC. 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DISMISSED in part and DENIED in part. 4 Petitioner Zhi Xun Chen, a native and citizen of the 5 People’s Republic of China, seeks review of a January 5, 2018, 6 decision of the BIA affirming a May 2, 2017, decision of an 7 Immigration Judge (“IJ”) denying his application for asylum, 8 withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Zhi Xun Chen, No. A202 047 10 998 (B.I.A. Jan. 5, 2018), aff’g No. A202 047 998 (Immig. Ct. 11 N.Y. City May 2, 2017). We assume the parties’ familiarity 12 with the underlying facts and procedural history. 13

**A. Scope and Standards of Review**  14 Under the circumstances of this case, we have considered 15 both the IJ’s and the BIA’s opinions “for the sake of 16 completeness.” Wangchuck v. Dep’t of Homeland Security , 448 17 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 18 review are well established. See 8 U.S.C. § 1252(b)(4)(B); 19 Wei Sun v. Sessions , 883 F.3d 23, 27 (2d Cir. 2018). 20

**B. Asylum: One Year Bar**  21 An alien is ineligible for asylum “unless the alien 22 demonstrates by clear and convincing evidence that the 233 application has been filed within 1 year after the date of 1 the alien’s arrival in the Unit ed States.” 8 U.S.C. 2 § 1158(a)(2)(B). An application may be considered outside 3 the deadline “if the alien demonstrates . . . extraordinary 4 circumstances relating to the delay,” 8 U.S.C. 5 § 1158(a)(2)(D), and the application is filed within a 6 reasonable time, 8 C.F.R. § 1208.4(a)(4)(ii), (5). 7 Our jurisdiction to review the agency’s findings 8 regarding the timeliness of an asylum application and the 9 circumstances excusing untimeliness is limited to 10 “constitutional claims or questions of law.” 8 U.S.C. 11 § 1252(a)(2)(D); see 8 U.S.C. § 1158(a)(3). Chen admits that 12 the record was unclear as to his entry, and he has not raised 13 a constitutional or legal challenge to the agency one-year 14 bar determination. Accordingly, we lack jurisdiction to 15 review that determination and dismiss the petition to that 16

extent. 17

**C. Withholding of Removal and CAT**  18 “The testimony of the applicant may be sufficient to 19 sustain the applicant’s burden without corroboration, but 20 only if the applicant satisfies the trier of fact that the 21 applicant’s testimony is credible, is persuasive, and refers 22 to specific facts sufficient to demonstrate that the 234 applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see 1 also id. § 1231(b)(3)(C); Wei Sun , 883 F.3d at 28. “In 2 determining whether the applicant has met the applicant’s 3 burden, the trier of fact may weigh the credible testimony 4 along with other evidence of record. Where the trier of fact 5 determines that the applicant should provide evidence that 6 corroborates otherwise credible testimony, such evidence must 7 be provided unless the applicant does not have the evidence 8 and cannot reasonably obtain the evidence.” 8 U.S.C. 9 § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C). 10 The IJ reasonably required evidence to corroborate Chen’s 11 testimony given that his credibility was questionable and his 12 testimony unpersuasive. See 8 U.S.C. § 1158(b)(1)(B)(ii), 13 (iii); see also Wei Sun , 883 F.3d at 28. For example, the 14 IJ reasonably found Chen’s demeanor hesitant and evasive at 15 times, his testimony regarding the alleged beating and his 16 resulting injuries lacked details, and his testimony 17 regarding the date he sought medical treatment was 18 inconsistent with his medical evidence. Further, the agency 19 did not err in finding that Chen failed to adequately 20 corroborate his claim because, other than his evidence that 21 was inconsistent with his testimony, he submitted only an 22 unsworn letter from a friend, which the agency was not 235 compelled to credit. See Y.C. v. Holder , 741 F.3d 324, 334 1 (2d Cir. 2013). 2 For these reasons, the agency did not err in finding that 3 Chen failed to satisfy his burden of establishing past 4 persecution or a likelihood of persecution with sufficient 5 corroboration. See 8 U.S.C. §§ 1158(b)(1)(B)(ii), 6 1231(b)(3)(C); see also Wei Sun , 883 F.3d at 28. That finding 7 is dispositive of withholding of removal and CAT relief 8 because those claims were based on the same factual 9 predicate.* See Paul v. Gonzales , 444 F.3d 148, 156–57 (2d 10 Cir. 2006). 11 For the foregoing reasons, the petition for review is 12 DISMISSED in part and DENIED in part. All pending motions 13 and applications are DENIED and stays VACATED. 14
FOR THE COURT: 15 Catherine O’Hagan Wolfe 16 Clerk of Court 17

* Contrary to the BIA’s and Government’s contention that Chen waived CAT, the IJ provided no new basis for denying CAT relief other than the lack of record evidence and thus Chen’s challenge to the denial of withholding necessarily includes a challenge to the denial of CAT.