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.

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 29th 4 day of March, two thousand thirteen.

5

6 PRESENT:

7 ROBERT D. SACK,

8 RICHARD C. WESLEY,

9 PETER W. HALL,

10 Circuit Judges. 

11 _____________________________________

12

13 ZHI FEI CHEN,

14 Petitioner, 

15

16 v. 12-552

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Nataliya I. Gavlin, New York, New

24 York.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Paul Fiorino,

28 Senior Litigation Counsel; Franklin

29 M. Johnson, Jr., Trial Attorney,
1 Office of Immigration Litigation,

2 U.S. Department of Justice,

3 Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DISMISSED in part and DENIED in part.

9 Zhi Fei Chen, a native and citizen of China, seeks

10 review of a January 17, 2012, order of the BIA affirming the

11 July 28, 2010, decision of Immigration Judge (“IJ”) Sandy K.

12 Hom, which denied his application for asylum, withholding of

13 removal, and relief under the Convention Against Torture

14 (“CAT”). In re Zhi Fei Chen, No. A 089 200 528 (B.I.A. Jan.

15 17, 2012), aff’g No. A 089 200 528 (Immig. Ct. N.Y. City

16 July 28, 2010). We assume the parties’ familiarity with the

17 underlying facts and procedural history in this case.

18 I. Asylum - Pretermission

19 In pretermitting Chen’s asylum application as untimely,

20 the agency found that he failed to present clear and

21 convincing evidence that the application was filed within

22 one year of his arrival in the United States, as required

23 under 8 U.S.C. § 1158(a)(2)(B). We lack jurisdiction to

24 review this determination. See 8 U.S.C. § 1158(a)(3). 

2
1 While we retain jurisdiction to review constitutional claims

2 and “questions of law,” 8 U.S.C. § 1252(a)(2)(D), Chen

3 challenges only the agency’s factual determinations, see

4 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d

5 Cir. 2006). Accordingly, we dismiss his petition for review

6 as to asylum.

7 II. Withholding of Removal

8 We retain jurisdiction to review the agency’s denial of

9 withholding of removal. Under the circumstances of this

10 case, we have reviewed the IJ’s decision as modified by the

11 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

12 520, 522 (2d Cir. 2005). The applicable standards of review

13 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see

14 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.

15 2009). 

16 The agency concluded that Chen failed to provide

17 sufficient evidence to corroborate his claim that he would

18 face persecution or torture in China because of his practice

19 of Falun Gong. Under the REAL ID Act, which applies in this

20 case, “[t]he testimony of the applicant may be sufficient to

21 sustain the applicant’s burden without corroboration, but

22 only if . . . the applicant’s testimony is credible, is

3
1 persuasive, and refers to specific facts . . . 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,” 8 U.S.C.

5 § 1158(b)(1)(B)(ii); 8 U.S.C. § 1231(b)(3)(C). Because

6 Chen’s testimony was confusing and imprecise, and the

7 documents Chen did present provided no greater insight into

8 his claim than his testimony, the agency did not err in

9 finding he failed to meet his burden of proof. See 8 U.S.C.

10 § 1158(b)(1)(B)(i). 

11 Specifically, because Chen testified that he began to

12 practice Falun Gong in order to treat a skin disorder for

13 which he had been diagnosed and treated by a doctor who

14 prescribed various medications, the IJ reasonably required

15 Chen to provide medical records or statements from treating

16 physicians to corroborate his claim that he had suffered

17 from a skin disease. See Chuilu Liu v. Holder, 575 F.3d

18 193, 198 (2d Cir. 2009). The IJ reasonably found Chen’s

19 explanation for the missing records, that “they say they

20 don’t have it because it’s a small things, they don’t have

21 the records,” insufficient, particularly in light of the

22 absence of proof that Chen or his family had attempted to

4
1 obtain the records. See Diallo v. INS, 232 F.3d 279, 284

2 (2d Cir. 2000); see also Majidi v. Gonzales, 430 F.3d 77,

3 80-81 (2d Cir. 2005)(holding that agency need not credit an

4 applicant’s explanations unless those explanations would

5 compel a reasonable fact-finder to do so).

6 Furthermore, given Chen’s general testimony regarding

7 the circumstances surrounding his release from detention,

8 the agency reasonably required Chen to provide government

9 records or statements from his family to corroborate his

10 testimony that his parents paid a fine to secure his release

11 from detention. Chen’s testimony alone that he did not

12 “dare to get” a payment confirmation did not compel the

13 agency to conclude that corroborating evidence was not

14 available. See Chuilu Liu, 575 F.3d at 196-99; Majidi, 430

15 F.3d at 80-81. 

16 Moreover, the agency reasonably found that Chen failed

17 to demonstrate a likelihood of future persecution in China

18 on account of his practice of Falun Gong, because Chen did

19 not provide any evidence of his continued practice of Falun

20 Gong in the United States, and had applied for, and obtained

21 without incident, a passport from the Chinese consulate in

22 New York. See 8 C.F.R. § 1208.16(b)(2) (noting that absent

5
1 a showing of past persecution, an applicant for withholding

2 of removal must show that it is “more likely than not” that

3 he would suffer future persecution based on a statutory

4 ground if returned to the country of removal). Because we

5 find no error in the agency’s determination that Chen failed

6 to meet his burden, we deny the petition as to withholding

7 of removal. Chen has not separately challenged the denial

8 of CAT relief.

9 For the foregoing reasons, the petition for review is

10 DISMISSED in part and DENIED in part. Because we have

11 completed our review, any stay of removal that the Court

12 previously granted in this petition is VACATED, and any

13 pending motion for a stay of removal in this petition is

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

15 this petition is DENIED in accordance with Federal Rule of

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

17 34.1(b).

18 FOR THE COURT: 

19 Catherine O’Hagan Wolfe, Clerk

6