10-4974-ag
    Chen v. Holder
                                                                                   BIA
                                                                              Ferris, IJ
                                                                          A200 112 624
                      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
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 13th day of April, two thousand twelve.

    PRESENT:
             RALPH K. WINTER,
             GUIDO CALABRESI,
             PETER W. HALL,
                 Circuit Judges.
    _____________________________________

    FENG CHEN,
             Petitioner,

                     v.                                    10-4974-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Dehai Zhang, Flushing, New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Emily Anne Radford,
                                  Assistant Director; Jesse D. Lorenz,
                                  Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
     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 Feng Chen, a native and citizen of the
People’s Republic of China, seeks review of a November 16,
2010, order of the BIA, affirming the November 4, 2008,
decision of Immigration Judge (“IJ”) Noel A. Ferris, which
denied his application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Feng Chen, No. A200 112 624 (B.I.A. Nov. 18, 2010), aff’g
No. A200 112 624 (Immig. Ct. N.Y. City Nov. 4, 2008). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.

     Under the circumstances of this case, we have reviewed
both the BIA’s and IJ’s opinions – or more precisely – the
IJ’s decision including the portions not explicitly
discussed by the BIA. Yun-Zui Guan v. Gonzales, 

, 394 (2d Cir. 2005). The applicable standards of review
are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
Weng v. Holder, 

, 513 (2d Cir. 2009).

     In finding that Chen failed to meet his burden of
establishing that his fear of persecution was objectively
reasonable, the agency reasonably relied on the fact that
Chen’s friend, with whom he was detained, was able to stay
in China unharmed following the April 2004 church raid, as
well as the fact that Chen remained unharmed in China for
some three years after his detention before fleeing to the
United States. Cf. Melgar de Torres v. Reno, 

,
313 (2d Cir. 1999). In finding that Chen failed to meet his
burden of establishing a well-founded fear of persecution,
the agency also reasonably relied on the absence of any
evidence suggesting that the police continued looking for
Chen after his departure from China and on the fact that
there was no consequence of Chen’s failure to report to the
Town Public Security Bureau. See Jian Xing Huang v. INS, 

, 129 (2d Cir. 2005) (holding that “[i]n the absence
of solid support in the record for [an applicant’s]
assertion that he will be [persecuted], his fear is
speculative at best”). Although Chen argues that it was not
clear whether he had missed any reporting requirements,
Chen’s statement attached to his asylum application clearly

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indicates that, as a consequence of his May 2001 detention,
he was required to report monthly to the Town Public
Security Bureau but that he only reported a total of five
times.

     Chen’s argument that the agency erred by finding he did
not demonstrate a well-founded fear of persecution due to
his failure to present available corroborating evidence is
also without merit. Although Chen contends that
“[c]orroborating evidence is not required until an asylum
applicant’s credibility is called into question,” under the
REAL ID Act, “[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.” Yan Juan Chen v. Holder,

, 252 (2d Cir. 2011) (quoting 8 U.S.C.
§ 1158(b)(1)(B)(ii)). As discussed above, Chen’s testimony,
while presumed credible, was insufficient to demonstrate a
well-founded fear of persecution. The agency, therefore,
did not err in requiring Chen to produce available
corroborating evidence. See Yan Juan 

;
8 U.S.C. § 1158(b)(1)(B)(ii).

     The agency also did not err in finding that testimony
from one of Chen’s current pastors or congregation members
was reasonably available. “Congress has instructed that
‘[n]o court shall reverse a determination made by a trier of
fact with respect to the availability of corroborating
evidence ... unless the court finds ... that a reasonable
trier of fact is compelled to conclude that such
corroborating evidence is unavailable.’” Yan Juan 

(quoting 8 U.S.C. § 1252(b)(4)) (emphasis and
alteration in Yan Juan Chen). In addition, as the
government points out, the IJ was not compelled to believe
that the only individuals capable of corroborating Chen’s
church attendance were somehow unavailable to testify, nor
was the IJ required to accept Chen’s invitation to telephone
his church in lieu of receiving live testimony. See 8
U.S.C. § 1252(b)(4).

     Because the agency’s finding that Chen failed to meet
his burden of demonstrating a well-founded fear of
persecution is supported by substantial evidence, we decline

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to consider Chen’s challenge to the IJ’s conclusion that the
Chinese government is more heavy-handed in its treatment of
Roman Catholics than other Christians. See Xiao Ji Chen v.
U.S. Dep’t of Justice, 

, 339 (2d Cir. 2006).
Even assuming that the IJ’s finding constitutes error,
remand of these proceedings would be futile as this Court
“can ‘confidently predict’ that the agency would reach the
same decision absent the errors that were made.” 

He Lin v. U.S. Dep’t of Justice, 

,
406 (2d Cir. 2005)). For the same reason, we decline to
reach the IJ’s alternative determination that Chen does not
warrant a favorable exercise of discretion.

     Lastly, as the government points out, Chen has
abandoned any challenge to the agency’s denial of CAT relief
by failing to raise the issue in his brief to this Court.

     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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