Wei v. Garland

Opinion

20-1970 Wei v. Garland BIA

Wright, IJ

A205 809 340

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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 22nd day of September, two thousand twenty- 5 two. 6 7 PRESENT: 8 PIERRE N. LEVAL, 9 JOSEPH F. BIANCO, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 YANG CAI WEI, 15 Petitioner, 16 17 v. 20-1970 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Gary J. Yerman, New York, NY. 25 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Brianne Whelan 28 Cohen, Senior Litigation Counsel;

1 Todd J. Cochran, Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, DC.

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 DENIED. 9 Petitioner Yang Cai Wei, a native and citizen of the 10 People’s Republic of China, seeks review of a May 28, 2020, 11 decision of the BIA affirming a May 23, 2018, decision of an 12 Immigration Judge (“IJ”) denying his application for asylum, 13 withholding of removal, and relief under the Convention 14 Against Torture (“CAT”). In re Yang Cai Wei, No. A 205 809 15 340 (B.I.A. May 28, 2020), aff’g No. A 205 809 340 (Immig. Ct. 16 N.Y. City May 23, 2018). We assume the parties’ familiarity 17 with the underlying facts and procedural history. 18 We have reviewed the IJ’s decision as supplemented by 19 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 20 Cir. 2005) (“Where the BIA adopts the decision of the IJ and 21 merely supplements the IJ’s decision, . . . we review the 22 decision of the IJ as supplemented by the BIA.”). The 23 applicable standards of review are well established. See 8

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1 U.S.C. § 1252(b)(4)(B) (“the administrative findings of fact 2 are conclusive unless any reasonable adjudicator would be 3 compelled to conclude to the contrary”); Wei Sun v. Sessions, 4 883 F.3d 23, 27 (2d Cir. 2018) (reviewing factual findings 5 for substantial evidence and questions of law de novo). 6 An applicant bears the burden of proof to show 7 eligibility for asylum. 8 U.S.C. § 1158(b)(1)(B)(i). “The 8 testimony of the applicant may be sufficient to sustain the 9 applicant’s burden without corroboration, but only if the 10 applicant satisfies the trier of fact that the applicant’s 11 testimony is credible, is persuasive, and refers to specific 12 facts sufficient to demonstrate that the applicant is a 13 refugee . . . . Where the trier of fact determines that the 14 applicant should provide evidence that corroborates otherwise 15 credible testimony, such evidence must be provided unless the 16 applicant does not have the evidence and cannot reasonably 17 obtain the evidence.” Id. § 1158(b)(1)(B)(ii). A lack of 18 corroboration can be an independent basis for the denial of 19 relief if the agency identifies reasonably available evidence 20 that should have been presented. See Wei Sun, 883 F.3d at 21 28–31. Before denying a claim solely for failure to provide

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1 corroborating evidence, the IJ must, either in his decision 2 or otherwise in the record, “(1) point to specific pieces of 3 missing evidence and show that it was reasonably available, 4 (2) give the applicant an opportunity to explain the omission, 5 and (3) assess any explanation given.” Id. at 31. “No court 6 shall reverse a determination made by a trier of fact with 7 respect to the availability of corroborating evidence . . . 8 unless the court finds . . . that a reasonable trier of fact 9 is compelled to conclude that such corroborating evidence is 10 unavailable.” 8 U.S.C. § 1252(b)(4). 11 First, Wei argues that the IJ failed to notify him that 12 his corroborating documents were insufficient, but he failed 13 to exhaust this argument on appeal to the BIA. See Lin Zhong 14 v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir. 2007) 15 (“Judicially-imposed doctrines of issue exhaustion . . . will 16 usually mean that issues not raised to the [Board] will not 17 be examined by the reviewing court.” (internal citation 18 omitted)). Even assuming exhaustion, the IJ did not err in 19 finding that Wei failed to meet his burden of proof. Advance 20 notice of the need for specific corroboration and an 21 opportunity to gather the evidence are not required, “because

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1 the alien bears the ultimate burden of introducing such 2 evidence without prompting from the IJ.” Wei Sun, 883 F.3d 3 at 31 (quotation marks omitted)). 4 The IJ followed the procedure for denying a claim based 5 on lack of corroboration. First, the IJ identified the 6 missing evidence, namely proof that Wei passed out fliers for 7 his church and documentation of his proselytizing via WeChat. 8 Second, the IJ asked Wei if he had “any proof that [he] 9 pass[ed] out fliers” or “posted on WeChat.” Wei did not 10 demonstrate that evidence that he passed out fliers was 11 unavailable because he failed to provide photographs that he 12 said he had, and he did not allege that his church or fellow 13 church member who confirmed church attendance could not have 14 confirmed his other activities. As for the WeChat messages, 15 Wei claimed he had the messages on his phone in Chinese, and 16 he did not allege that he was unable to print them and have 17 them translated. Because this evidence of his public 18 religious activities and proselytizing was available, the IJ 19 did not err in concluding that Wei failed to meet his burden 20 of proof. Id.; see also 8 U.S.C. § 1252(b)(4). This 21 evidence was material to Wei’s allegation that the Chinese

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1 government was aware of would become aware of his practice of 2 Christianity. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 3 143 (2d Cir. 2008) (holding that applicant whose claim is 4 based on activities undertaken in the United States must 5 demonstrate “a reasonable possibility” that “authorities in 6 his country of nationality are either aware of his activities 7 or likely to become aware of his activities.” (quotation 8 marks omitted)). 9 Second, Wei argues that the evidence he provided was 10 sufficient to corroborate his testimony. The agency was not 11 required to credit letters from Wei’s family members and 12 fellow church members in the United States because the letters 13 were written by interested parties or parties not available 14 for cross-examination. See Y.C. v. Holder, 741 F.3d 324, 334 15 (2d Cir. 2013) (holding that weight of documentary evidence 16 is within agency’s discretion and deferring to the agency’s 17 decision to give limited weight to letter from 18 applicant’s spouse). Wei presented photographs of himself 19 at church events, but nothing in the photographs identified 20 Wei or others as Christians, nor did the photographs depict 21 proselytizing or confirm that Wei proselytized on WeChat.

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1 Id. at 332 (“We defer to the agency’s evaluation of the weight 2 to be afforded an applicant’s documentary evidence.”). 3 Because the IJ identified reasonably available evidence 4 that Wei should have presented to confirm material aspects of 5 his claim—specifically his public expression of his 6 Christianity and his proselytizing to individuals in China— 7 the agency did not err in concluding that Wei failed to meet 8 his burden. See 8 U.S.C. § 1158(b)(1)(B)(ii). Because Wei 9 failed to meet his burden of proof for asylum, 10 he “necessarily” failed to meet the higher burden for 11 withholding of removal and CAT relief. Lecaj v. Holder, 616 12 F.3d 111, 119–20 (2d Cir. 2010). 13 For the foregoing reasons, the petition for review is 14 DENIED. All pending motions and applications are DENIED and 15 stays VACATED.

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court