Filed: Apr. 08, 2014
Latest Update: Mar. 02, 2020
Summary: 12-2250 Chang v. Holder BIA Lamb, IJ A094 926 276 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: 12-2250 Chang v. Holder BIA Lamb, IJ A094 926 276 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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12-2250
Chang v. Holder
BIA
Lamb, IJ
A094 926 276
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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 8th day of April, two thousand fourteen.
PRESENT:
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
JIAN CHANG, AKA JIAN LIN-YANG,
Petitioner,
v. 12-2250
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gerald Karikari, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Luis E. Perez,
Senior Litigation Counsel; Regina
Byrd, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Jian Chang, a native and citizen of the People’s
Republic of China, seeks review of a May 11, 2012, decision
of the BIA affirming the May 14, 2010, decision of
Immigration Judge (“IJ”) Elizabeth A. Lamb, denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Jian
Chang, No. A094 926 276 (B.I.A. May 11, 2012), aff’g No.
A094 926 276 (Immig. Ct. N.Y. City May 14, 2010). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
We reviewed the IJ’s decision as supplemented and
modified by the BIA. See Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005); see also Xue Hong Yang v. U.S.
Dep’t of Justice,
426 F.3d 520, 522 (2d Cir. 2005). The
applicable standards of review are well established. See
8 U.S.C. § 1252(b)(4)(B); see also Yan
Chen, 417 F.3d at
271.
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I. Claims Based on Activities in China
Chang has abandoned his claim that he suffered past
persecution, arguing only that the agency erred in finding
that he failed to establish a well-founded fear of
persecution on account of his distribution of Falun Gong
flyers in China. The agency did not err in finding Chang’s
testimony in this regard implausible such that he was
required to provide reasonably available, credible
corroborating evidence. See Chuilu Liu v. Holder, 575 F.3d
193, 196-97 (2d Cir. 2009). “The point at which a finding
that testimony is implausible ceases to be sustainable as
reasonable and, instead, is justifiably labeled
“speculation,” in the absence of an IJ's adequate
explanation, cannot be located with precision.” Ming Xia
Chen v. BIA,
435 F.3d 141, 145 (2d Cir. 2006). However,
while “bald” speculation is an impermissible basis for
finding testimony implausible, “speculation that inheres in
inference is not ‘bald’ if the inference is made available
to the factfinder by record facts, or even a single fact,
viewed in the light of common sense and ordinary
experience.” Siewe v. Gonzales,
480 F.3d 160, 168-69 (2d
Cir. 2007).
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The agency’s finding that it was implausible that
police were able to quickly identify Chang and locate his
house was reasonably based on record facts viewed in light
of common sense, namely Chang’s testimony that: (1) the
policemen from whom he ran did not know him, did not
question him, and did not even ask his name; (2) he was
distributing flyers onto bicycles outside a supermarket
alone; and (3) he did not speak to or recognize anyone at
the supermarket at which he only sometimes shopped. See id.
Furthermore, Chang has not identified any record evidence
“from which a firm conviction of error could properly be
derived,” Wensheng Yan v. Mukasey,
509 F.3d 63, 67 (2d Cir.
2007); see also
Siewe, 480 F.3d at 168 (noting that “record
support for a contrary inference—even one more plausible or
more natural—does not suggest error”). Contrary to Chang’s
argument, the agency was not compelled to credit Chang’s
explanation that some unidentified person may have reported
him, see Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir.
2005) (finding that an agency need not credit an applicant’s
explanations unless those explanations would compel a
reasonable fact-finder to do so).
As the agency did not err in finding Chang’s account of
events in China implausible, the BIA did not err in
4
concluding that reasonably available corroborating evidence
was required to satisfy his burden of proof that he had a
well-founded fear of persecution. See 8 U.S.C.
§ 1158(b)(1)(B)(i); see also Chuilu Liu, 575 F.3d at 196-97.
Indeed, “[w]hile consistent, detailed, and credible
testimony may be sufficient to carry the alien’s burden,
evidence corroborating his story, or an explanation for its
absence, may be required where it would reasonably be
expected.” Diallo v. INS,
232 F.3d 279, 285 (2d Cir. 2000).
Even if we assume arguendo that the IJ erred in finding that
there was reasonably available medical evidence of injuries
his father suffered, there is no error in the agency’s (1)
decision not to credit unsworn letters from Chang’s father
and friend, or (2) in its finding that sworn letters, or
other evidence of his father’s detention, beating, or
resulting injuries were reasonably available because Chang
was in communication with his father. See Xiao Ji Chen v.
U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir. 2006)
(noting that the weight afforded to the applicant’s evidence
lies largely within the discretion of the agency); In re H-
L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (finding
that unsworn letters from the alien’s friends and family
were insufficient to provide substantial support for the
5
alien’s claims because they were interested witnesses not
subject to cross-examination (citations omitted)), overruled
on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130,
133-38 (2d Cir. 2012).
Accordingly, because a reasonable fact-finder would not
be compelled to reach the conclusion that Chang satisfied
his burden of proving that he had a well-founded fear of
persecution on account of his distribution of Falun Gong
flyers in China, substantial evidence supports the agency’s
decision to this extent. See 8 U.S.C. § 1252(b)(4)(B); Yan
Chen, 417 F.3d at 271. Therefore, the agency did not err in
denying asylum, withholding of removal, and CAT relief
insofar as those claims were based on Chang’s claimed fear
of persecution for his activities in China. See Paul v.
Gonzales,
444 F.3d 148, 155-57 (2d Cir. 2006).
II. Claims Based on Activities in the United States
The agency did not err in concluding that Chang failed
to demonstrate a well-founded fear of persecution on account
of his practice of Falun Gong in the United States because
he did not assert that authorities in China were aware of
his practice, and his conclusory assertion that they would
like become aware of his practice was insufficient to
satisfy his burden absent any supporting country conditions
6
evidence. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
(2d Cir. 2008). Therefore, the agency reasonably denied
Chang asylum, withholding of removal, and CAT relief insofar
as those claims were based on his activities in the United
States. See
Paul, 444 F.3d at 156-57.
We do not consider Chang’s assertion that he has a
well-founded fear of persecution as there is a pattern and
practice of persecution of Falun Gong practitioners in China
because he did not exhaust that argument before the agency.
See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124
(2d Cir. 2007) (concluding that exhaustion of administrative
remedies is a predicate of this Court’s subject matter
jurisdiction, while the failure to exhaust specific issues
is an affirmative defense subject to waiver).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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