12-552 Chen v. Holder BIA Hom, IJ A 089 200 528 

### 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**  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 29 th** **day of March, two thousand thirteen.** 4 5 **PRESENT:** 6 **ROBERT D. SACK,** 7 **RICHARD C. WESLEY,** 8 **PETER W. HALL,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **ZHI FEI CHEN,** 13 Petitioner**,** 14 15 **v. 12-552** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Nataliya I. Gavlin, New York, New** 23 **York.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Paul Fiorino,** 27 **Senior Litigation Counsel; Franklin** 28 **M. Johnson, Jr., Trial Attorney,** 29**Office of Immigration Litigation,** 1 **U.S. Department of Justice,** 2 **Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DISMISSED in part and DENIED in part. 8 Zhi Fei Chen, a native and citizen of China, seeks 9 review of a January 17, 2012, order of the BIA affirming the 10 July 28, 2010, decision of Immigration Judge (“IJ”) Sandy K. 11 Hom, which denied his application for asylum, withholding of 12 removal, and relief under the Convention Against Torture 13 (“CAT”). In re Zhi Fei Chen, No. A 089 200 528 (B.I.A. Jan. 14 17, 2012), aff’gNo. A 089 200 528 (Immig. Ct. N.Y. City 15 July 28, 2010). We assume the parties’ familiarity with the 16 underlying facts and procedural history in this case. 17 **I. Asylum - Pretermission** 18 In pretermitting Chen’s asylum application as untimely, 19 the agency found that he failed to present clear and 20 convincing evidence that the application was filed within 21 one year of his arrival in the United States, as required 22 under 8 U.S.C. § 1158(a)(2)(B)

. We lack jurisdiction to 23 review this determination. See 8 U.S.C. § 1158(a)(3). 24

2While we retain jurisdiction to review constitutional claims 1 and “questions of law,” 8 U.S.C. § 1252(a)(2)(D) , Chen 2 challenges only the agency’s factual determinations, see 3 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d 4 Cir. 2006). Accordingly, we dismiss his petition for review 5 as to asylum. 6 **II. Withholding of Removal** 7 We retain jurisdiction to review the agency’s denial of 8 withholding of removal. Under the circumstances of this 9 case, we have reviewed the IJ’s decision as modified by the 10

BIA. See Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 11 520, 522 (2d Cir. 2005). The applicable standards of review 12 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see 13 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 14 2009). 15 The agency concluded that Chen failed to provide 16 sufficient evidence to corroborate his claim that he would 17 face persecution or torture in China because of his practice 18 of Falun Gong. Under the REAL ID Act, which applies in this 19 case, “[t]he testimony of the applicant may be sufficient to 20 sustain the applicant’s burden without corroboration, but 21 only if . . . the applicant’s testimony is credible, is 22

3persuasive, and refers to specific facts . . . In 1 determining whether the applicant has met the applicant’s 2 burden, the trier of fact may weigh the credible testimony 3 along with other evidence of record,” 8 U.S.C. 4 § 1158(b)(1)(B)(ii); 8 U.S.C. § 1231(b)(3)(C). Because 5 Chen’s testimony was confusing and imprecise, and the 6 documents Chen did present provided no greater insight into 7 his claim than his testimony, the agency did not err in 8 finding he failed to meet his burden of proof. See 8 U.S.C. 9 § 1158(b)(1)(B)(i). 10 Specifically, because Chen testified that he began to 11 practice Falun Gong in order to treat a skin disorder for 12 which he had been diagnosed and treated by a doctor who 13 prescribed various medications, the IJ reasonably required 14 Chen to provide medical records or statements from treating 15 physicians to corroborate his claim that he had suffered 16 from a skin disease. See Chuilu Liu v. Holder, 575 F.3d 17 193, 198 (2d Cir. 2009). The IJ reasonably found Chen’s 18 explanation for the missing records, that “they say they 19 don’t have it because it’s a small things, they don’t have 20 the records,” insufficient, particularly in light of the 21 absence of proof that Chen or his family had attempted to 22

4obtain the records.See Diallo v. INS, 232 F.3d 279, 284 1 (2d Cir. 2000); see also Majidi v. Gonzales, 430 F.3d 77, 2 80-81 (2d Cir. 2005)(holding that agency need not credit an 3 applicant’s explanations unless those explanations would 4 compel a reasonable fact-finder to do so). 5 Furthermore, given Chen’s general testimony regarding 6 the circumstances surrounding his release from detention, 7 the agency reasonably required Chen to provide government 8 records or statements from his family to corroborate his 9 testimony that his parents paid a fine to secure his release 10 from detention. Chen’s testimony alone that he did not 11 “dare to get” a payment confirmation did not compel the 12 agency to conclude that corroborating evidence was not 13 available. See Chuilu Liu, 575 F.3d at 196-99; Majidi , 430 14 F.3d at 80-81. 15 Moreover, the agency reasonably found that Chen failed 16 to demonstrate a likelihood of future persecution in China 17 on account of his practice of Falun Gong, because Chen did 18 not provide any evidence of his continued practice of Falun 19 Gong in the United States, and had applied for, and obtained 20 without incident, a passport from the Chinese consulate in 21 New York. See 8 C.F.R. § 1208.16(b)(2) (noting that absent 22

5a showing of past persecution, an applicant for withholding 1 of removal must show that it is “more likely than not” that 2 he would suffer future persecution based on a statutory 3 ground if returned to the country of removal). Because we 4 find no error in the agency’s determination that Chen failed 5 to meet his burden, we deny the petition as to withholding 6 of removal. Chen has not separately challenged the denial 7 of CAT relief. 8 For the foregoing reasons, the petition for review is 9 DISMISSED in part and DENIED in part. Because we have 10 completed our review, any stay of removal that the Court 11 previously granted in this petition is VACATED, and any 12 pending motion for a stay of removal in this petition is 13 DISMISSED as moot. Any pending request for oral argument in 14 this petition is DENIED in accordance with Federal Rule of 15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 16 34.1(b). 17
FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19

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