16-2982
    Cicek v. Sessions
                                                                                    BIA
                                                                              Poczter, IJ
                                                                           A097 515 600
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 22nd day of May, two thousand eighteen.

    PRESENT:
             RALPH K. WINTER,
             DENNIS JACOBS,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    YALCIN CICEK,
             Petitioner,

                        v.                                       16-2982
                                                                 NAC
    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                     Joshua Bardavid, New York, NY.

    FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
                                        Attorney General; Douglas E.
                                        Ginsburg, Assistant Director;
                                        Jenny C. Lee, Trial Attorney,
                                        Office of Immigration Litigation,
                                        United States Department of
                                        Justice, Washington, DC.
       UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

       Petitioner Yalcin Cicek, a native and citizen of Turkey,

seeks review of a July 29, 2016, decision of the BIA affirming

an April 10, 2015, decision of an Immigration Judge (“IJ”)

denying him withholding of removal and relief under the

Convention Against Torture (“CAT”).     In re Yalcin Cicek, No.

A097 515 600 (B.I.A. July 29, 2016), aff’g No. A097 515 600

(Immig. Ct. N.Y. City Apr. 10, 2015).    We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

       Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA, i.e., minus the

alternative burden finding that was not considered by the

BIA.    Xue Hong Yang v. U.S. Dep’t of Justice, 

,

522 (2d Cir. 2005).    The applicable standards of review are

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

Chuilu Liu v. Holder, 

, 196 (2d Cir. 2009).

The agency did not err in finding that Cicek failed to

satisfy his burden of corroborating that he is Alevi and
                                2
that he suffered and is likely to suffer harm in Turkey on

that account.

      “The testimony of the applicant may be sufficient to

sustain the applicant’s burden without corroboration, but

only if the applicant satisfies the trier of fact that the

applicant’s testimony is credible, is persuasive, and

refers to specific facts sufficient to demonstrate that the

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

see also Chuilu 

-

97.   However, “[w]here the trier of fact determines that

the applicant should provide evidence that corroborates

otherwise credible testimony, such evidence must be

provided unless the applicant does not have the evidence

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

1158(b)(1)(B)(ii).    Cicek does not challenge the decision

to require corroboration, but rather argues that the

corroborating evidence he did submit was sufficient.

      We disagree.   The agency did not err in concluding that

Cicek failed to provide reasonably available, reliable

evidence that he is of the Alevi faith and that he and his

family suffered physical attacks and harassment on that

account.   As an initial matter, the IJ did not err in

                                3
declining to credit unsworn statements from Cicek’s parents

because they were interested parties who were not available

for cross-examination.   See Y.C. v. Holder, 

,

334 (2d Cir. 2013).   Contrary to Cicek’s contentions, the

IJ was not required to explain whether his parents’

testimony was available telephonically given that he bore

“the ultimate burden of introducing such evidence without

prompting from the IJ,” Chuilu 

, and

the IJ was permitted to consider his parents’ interest in

the outcome of his proceedings regardless of whether they

can legally benefit from a grant of asylum, see Xiao Ji

Chen v. U.S. Dep’t of Justice, 

, 341-42 (2d

Cir. 2006) (holding that determination of the weight of

evidence is largely matter of agency discretion).

    The IJ properly identified the missing evidence.    As

the IJ noted, Cicek could have obtained more reliable

evidence that he is Alevi, such as statements or testimony

from Alevis that he is acquainted with in the United

States.   Cicek also failed to submit reasonably available

evidence to support his testimony that he and his family

were beaten and harassed in Turkey.   The IJ was not

required to credit Cicek’s unresponsive explanation that he

                              4
did not provide a statement or testimony from his uncle who

lives in the United States because his uncle arrived in the

United States after him or his statement that his uncle

“may come” if he is wanted.   See Majidi v. Gonzales, 

, 80 (2d Cir. 2005) (“A petitioner must do more than

offer a plausible explanation for his inconsistent

statements to secure relief; he must demonstrate that a

reasonable fact-finder would be compelled to credit his

testimony.” (internal quotation marks omitted)).   Nor did

the IJ err in rejecting Cicek’s attempts to explain his

failure to provide a statement from his brother who is

seeking asylum on similar grounds in the United Kingdom

because Cicek first stated that he does not speak to his

brother, but later testified inconsistently that he could

not ask his brother for a statement given that his brother

asks him for money all the time.   See 

agency did not err in finding that

Cicek failed to satisfy his burden of demonstrating past

persecution or a likelihood of persecution or torture on

account of his religion.   See 8 U.S.C.

§§ 1158(b)(1)(B)(ii), 1231(b)(3)(C).   That finding is

dispositive of withholding of removal and CAT relief

                              5
because those forms of relief were based on the same

factual predicate.   See Paul v. Gonzales, 

,

156-57 (2d Cir. 2006).*

    For the foregoing reasons, the petition for review is

DENIED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




* Contrary to the BIA’s conclusion, Cicek’s challenge to
the IJ’s denial of withholding of removal necessarily
challenged the denial of CAT relief because the IJ denied
both forms of relief based on Cicek’s failure to
corroborate.
                              6