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.

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, 

on the 16th 4 day of December, two thousand nineteen. 

5 

6 PRESENT: 

7 GUIDO CALABRESI,

8 PETER W. HALL, 

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 ZHI XUN CHEN, 

14 Petitioner, 

15 

16 v. 18-229 

17 NAC 

18 WILLIAM P. BARR, UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Dehai Zhang, Flushing, NY. 

24 

25 FOR RESPONDENT: Joseph H. Hunt, Assistant 

26 Attorney General; Jessica E. 

27 Burns, Senior Litigation Counsel; 

28 Rosanne M. Perry, Trial Attorney, 

29 Office of Immigration Litigation, 

30 United States Department of 

31 Justice, Washington, DC. 
2 

1 UPON DUE CONSIDERATION of this petition for review of a 

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

3 ORDERED, ADJUDGED, AND DECREED that the petition for review 

4 is DISMISSED in part and DENIED in part. 

5 Petitioner Zhi Xun Chen, a native and citizen of the 

6 People’s Republic of China, seeks review of a January 5, 2018, 

7 decision of the BIA affirming a May 2, 2017, decision of an 

8 Immigration Judge (“IJ”) denying his application for asylum, 

9 withholding of removal, and relief under the Convention 

10 Against Torture (“CAT”). In re Zhi Xun Chen, No. A202 047 

11 998 (B.I.A. Jan. 5, 2018), aff’g No. A202 047 998 (Immig. Ct. 

12 N.Y. City May 2, 2017). We assume the parties’ familiarity 

13 with the underlying facts and procedural history. 

14 A. Scope and Standards of Review 

15 Under the circumstances of this case, we have considered 

16 both the IJ’s and the BIA’s opinions “for the sake of 

17 completeness.” Wangchuck v. Dep’t of Homeland Security, 448 

18 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 

19 review are well established. See 8 U.S.C. § 1252(b)(4)(B); 

20 Wei Sun v. Sessions, 883 F.3d 23, 27 (2d Cir. 2018). 

21 B. Asylum: One Year Bar 

22 An alien is ineligible for asylum “unless the alien 

23 demonstrates by clear and convincing evidence that the 
3 

1 application has been filed within 1 year after the date of 

2 the alien’s arrival in the United States.” 8 U.S.C. 

3 § 1158(a)(2)(B). An application may be considered outside 

4 the deadline “if the alien demonstrates . . . extraordinary 

5 circumstances relating to the delay,” 8 U.S.C. 

6 § 1158(a)(2)(D), and the application is filed within a 

7 reasonable time, 8 C.F.R. § 1208.4(a)(4)(ii), (5). 

8 Our jurisdiction to review the agency’s findings 

9 regarding the timeliness of an asylum application and the 

10 circumstances excusing untimeliness is limited to 

11 “constitutional claims or questions of law.” 8 U.S.C. 

12 § 1252(a)(2)(D); see 8 U.S.C. § 1158(a)(3). Chen admits that 

13 the record was unclear as to his entry, and he has not raised 

14 a constitutional or legal challenge to the agency one-year 

15 bar determination. Accordingly, we lack jurisdiction to 

16 review that determination and dismiss the petition to that 

17 extent. 

18 C. Withholding of Removal and CAT 

19 “The testimony of the applicant may be sufficient to 

20 sustain the applicant’s burden without corroboration, but 

21 only if the applicant satisfies the trier of fact that the 

22 applicant’s testimony is credible, is persuasive, and refers 

23 to specific facts sufficient to demonstrate that the 
4 

1 applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see 

2 also id. § 1231(b)(3)(C); Wei Sun, 883 F.3d at 28. “In 

3 determining whether the applicant has met the applicant’s 

4 burden, the trier of fact may weigh the credible testimony 

5 along with other evidence of record. Where the trier of fact 

6 determines that the applicant should provide evidence that 

7 corroborates otherwise credible testimony, such evidence must 

8 be provided unless the applicant does not have the evidence 

9 and cannot reasonably obtain the evidence.” 8 U.S.C. 

10 § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C). 

11 The IJ reasonably required evidence to corroborate Chen’s 

12 testimony given that his credibility was questionable and his 

13 testimony unpersuasive. See 8 U.S.C. § 1158(b)(1)(B)(ii), 

14 (iii); see also Wei Sun, 883 F.3d at 28. For example, the 

15 IJ reasonably found Chen’s demeanor hesitant and evasive at 

16 times, his testimony regarding the alleged beating and his 

17 resulting injuries lacked details, and his testimony 

18 regarding the date he sought medical treatment was 

19 inconsistent with his medical evidence. Further, the agency 

20 did not err in finding that Chen failed to adequately 

21 corroborate his claim because, other than his evidence that 

22 was inconsistent with his testimony, he submitted only an 

23 unsworn letter from a friend, which the agency was not 
5 

1 compelled to credit. See Y.C. v. Holder, 741 F.3d 324, 334 

2 (2d Cir. 2013). 

3 For these reasons, the agency did not err in finding that 

4 Chen failed to satisfy his burden of establishing past 

5 persecution or a likelihood of persecution with sufficient 

6 corroboration. See 8 U.S.C. §§ 1158(b)(1)(B)(ii), 

7 1231(b)(3)(C); see also Wei Sun, 883 F.3d at 28. That finding 

8 is dispositive of withholding of removal and CAT relief 

9 because those claims were based on the same factual 

10 predicate.* See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d 

11 Cir. 2006). 

12 For the foregoing reasons, the petition for review is 

13 DISMISSED in part and DENIED in part. All pending motions 

14 and applications are DENIED and stays VACATED. 

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe 

17 Clerk of Court

* 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.