11-72-ag

Li v. Holder

BIA

Nelson, IJ

A089 250 638

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 Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of New

York, on the 9th 4 day of August, two thousand twelve.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 RICHARD C. WESLEY,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _______________________________________

12

13 HAOLIN LI,

14 Petitioner,

15

16 v. 11-72-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Matthew J. Harris, Long Island City,

24 New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Daniel E. Goldman, Senior

28 Litigation Counsel; Jonathan

29 Robbins, Trial Attorney, Office of

30 Immigration Litigation, Civil

31 Division, United States Department

32 of Justice, Washington, D.C.
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1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 review is DENIED.

5 Petitioner Haolin Li, a native and citizen of the

6 People’s Republic of China, seeks review of a December 17,

7 2010, order of the BIA affirming the February 17, 2009,

8 decision of an Immigration Judge (“IJ”), denying his

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re Haolin

11 Li, No. A089 250 638 (B.I.A. Dec. 17, 2010), aff’g No. A089

12 250 638 (Immig. Ct. N.Y. City Feb. 17, 2009). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history of the case.

15 Substantial evidence supports the agency’s conclusion

16 that Li failed to provide sufficient corroborating evidence

17 to support his claim that he would face persecution or

18 torture as a Chinese Democracy Party (“CDP”) member. Under

19 the REAL ID Act, which applies in this case, “[t]he

20 testimony of the applicant may be sufficient to sustain the

21 applicant’s burden without corroboration, but only if . . .

22 the applicant’s testimony is credible, is persuasive, and
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1 refers to specific facts . . . . In determining whether the

2 applicant has met the applicant’s burden, the trier of fact

3 may weigh the credible testimony along with other evidence

4 of record.” 8 U.S.C. § 1158(b)(1)(B)(ii). It was not

5 unreasonable for the agency to require further corroborating

6 evidence, as Li’s testimony was sparse and vague, and the

7 corroborative documents Li did present failed to mention key

8 parts of his claim–including his arrest and detention by

9 Chinese officials. See 8 U.S.C. § 1158(b)(1)(B)(i). 

10 The agency’s determination that a particular piece of

11 corroborating evidence was reasonably available and should

12 have been presented is a finding of fact, which we review

13 under the substantial evidence standard, and will not

14 reverse unless a reasonable trier of fact would be compelled

15 to conclude that such corroborating evidence is unavailable. 

16 See 8 U.S.C. § 1252(b)(4); Kyaw Zwar Tun v. INS, 445 F.3d

17 554, 563, 568 (2d Cir. 2006). 

18 Here, the agency identified the type of corroborating

19 evidence that Li should have presented to corroborate his

20 claim, including eyewitness accounts of his arrest (by his

21 wife), evidence of physical injury, or any medical treatment

22 he received. Li made no effort to corroborate his claim
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1 with this evidence, stating instead that he did not know why

2 his wife failed to mention his arrest in her supporting

3 letters, and alternatively that his wife’s letters only

4 discussed events that occurred after he departed China. The

5 agency reasonably rejected this explanation. See Majidi v.

6 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (the agency need

7 not credit an applicant’s explanations unless a reasonable

8 fact-finder would be compelled to do so). 

9 Li further argues that he should not be required to

10 submit corroborative evidence of his arrests from his

11 persecutors, the Chinese government. However, the pieces of

12 additional corroborative evidence that the agency identified

13 could be obtained without interaction with the Chinese

14 government and thus Li’s argument on this account is

15 unavailing. Consequently, substantial evidence supports the

16 agency’s determination that Li could reasonably provide

17 corroborative evidence as well as its decision to decline to

18 credit his explanations for why he did not provide such

19 evidence.

20 Moreover, as the agency found that Li had not

21 sufficiently corroborated his past persecution claim, the

22 agency reasonably found that Li had failed to establish a
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1 well-founded fear of persecution because there was no

2 indication that Chinese authorities were aware that Li had

3 previously distributed CDP literature in China or that they

4 were aware of his activities in the United States, because

5 his activities were not published on the internet and he was

6 difficult to identify in pictures. See Hongsheng Leng v.

7 Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (“to establish a

8 well-founded fear of persecution in the absence of any

9 evidence of past persecution, an alien must make some

10 showing that authorities in his country of nationality are

11 either aware of his activities or likely to become aware of

12 his activities.”). As the agency did not err in concluding

13 that Li failed to establish past persecution or a well14 founded fear of future persecution if returned to China, it

15 did not err in denying his application for withholding of

16 removal, and CAT relief insofar as these claims shared the

17 same factual predicate. See Paul v. Gonzales, 444 F.3d 148,

18 156 (2d Cir. 2006) (withholding of removal); Xue Hong Yang

19 v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2006)

20 (CAT relief). 

21 For the foregoing reasons, the petition for review is

22 DENIED. As we have completed our review, any stay of

23 removal that the Court previously granted in this petition
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1 is VACATED, and any pending motion for a stay of removal in

2 this petition is DISMISSED as moot. Any pending request for

3 oral argument in this petition is DENIED in accordance with

4 Federal Rule of Appellate Procedure 34(a)(2), and Second

5 Circuit Local Rule 34.1(b).

6 FOR THE COURT:

7 Catherine O’Hagan Wolfe, Clerk

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