Filed: Aug. 09, 2012
Latest Update: Feb. 12, 2020
Summary: 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 NOTAT
Summary: 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 NOTATI..
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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
4 York, on the 9th 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.
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
2
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
3
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
4
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 well-
14 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
5
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
8
9
10
6
