Filed: Mar. 16, 2016
Latest Update: Mar. 02, 2020
Summary: 14-4639 Hu v. Lynch BIA Nelson, IJ A200 748 063 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 NOTATIO
Summary: 14-4639 Hu v. Lynch BIA Nelson, IJ A200 748 063 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..
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14-4639
Hu v. Lynch
BIA
Nelson, IJ
A200 748 063
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 16th day of March, two thousand sixteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 ROBERT D. SACK,
11 Circuit Judges.
12 _____________________________________
13
14 YANGUANG HU,
15 Petitioner,
16
17 v. 14-4639
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Cora J. Chang, New York, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Carl
28 McIntyre, Assistant Director;
29 Robert D. Tennyson, Trial Attorney,
1 Office of Immigration Litigation,
2 United States Department of Justice,
3 Washington, D.C.
4
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 is
8 DENIED.
9 Petitioner Yanguang Hu, a native and citizen of the
10 People’s Republic of China, seeks review of a November 26, 2014,
11 decision of the BIA, affirming a June 18, 2013, decision of an
12 Immigration Judge (“IJ”) denying Hu’s application for asylum,
13 withholding of removal, and relief under the Convention Against
14 Torture (“CAT”). In re Yanguang Hu, No. A200 748 063 (B.I.A.
15 Nov. 26, 2014), aff’g No. A200 748 063 (Immig. Ct. N.Y. City
16 June 18, 2013). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 Under the circumstances of this case, we have reviewed the
19 IJ’s decision as modified by the BIA, i.e., minus the bases for
20 denying relief that the BIA did not explicitly consider (the
21 IJ’s findings regarding the timeliness of Hu’s asylum
22 application and the credibility of his testimony). See Chuilu
23 Liu v. Holder, 575 F.3d 193, 194, 196 (2d Cir. 2009). Contrary
24 to the Government’s contention, we have jurisdiction to review
2
1 the agency’s denial of asylum and CAT relief because Hu
2 exhausted his challenge to the agency’s lack of corroboration
3 finding, which was the only basis for denying asylum and CAT
4 relief that the BIA affirmed. The applicable standards of
5 review are well established. 8 U.S.C. § 1252(b)(4)(B); Chuilu
6 Liu, 575 F.3d at 196.
7 An applicant bears the burden of establishing eligibility
8 for asylum and related relief. 8 U.S.C. § 1158(b)(1)(B)(i);
9 8 C.F.R. § 1208.16(b), (c)(2). “While consistent, detailed,
10 and credible testimony may be sufficient to carry the alien’s
11 burden, evidence corroborating his story, or an explanation for
12 its absence, may be required where it would reasonably be
13 expected.” Diallo v. INS,
232 F.3d 279, 285 (2d Cir. 2000);
14 see also 8 U.S.C. § 1158(b)(1)(B)(ii). Before denying a claim
15 solely based on an applicant’s failure to provide corroborating
16 evidence, the IJ must, either in her decision or otherwise in
17 the record (1) identify the specific evidence missing, and
18 explain why it was reasonably available, (2) provide an
19 opportunity to explain the omission, and (3) assess any
20 explanation given. Chuilu
Liu, 575 F.3d at 198.
21 In this case, it was reasonable for the agency to require
22 evidence corroborating Hu’s claims that he was detained and
3
1 beaten in China for participating in underground Christian
2 church activities, and that he continues to practice his
3 religion in the United States, particularly given that Hu made
4 inconsistent statements regarding the number of times he was
5 beaten and when he began attending church in the United States.
6 See 8 U.S.C. § 1158(b)(1)(B)(ii) (“The testimony of the
7 applicant may be sufficient to sustain the applicant’s burden
8 without corroboration, but only if the applicant satisfies the
9 trier of fact that the applicant’s testimony is credible, is
10 persuasive, and refers to specific facts sufficient to
11 demonstrate that the applicant is a refugee.”); see also Chuilu
12 Liu, 575 F.3d at 196-97. Moreover, the agency reasonably noted
13 that Hu had not submitted any evidence, such as a letter from
14 his parents, younger brother, or fellow practitioners, to
15 corroborate his claim that he was detained and beaten in China.
16 See Chuilu
Liu, 575 F.3d at 198 (providing that “the alien bears
17 the ultimate burden of introducing such evidence without
18 prompting from the IJ.”). Hu admitted that he could have
19 contacted his family to obtain such evidence. And, the IJ
20 reasonably rejected Hu’s explanation that he did not contact
21 his fellow practitioners for fear of implicating them in light
4
1 of his testimony that at least ten of his fellow practitioners
2 were arrested with him and thus already implicated.
3 As to his fear of future persecution on account of his
4 continued religious practice, the agency reasonably accorded
5 limited weight to an October 2010 form letter issued by the
6 Church of Grace to Fujianese in New York, stating that Hu had
7 attended services regularly since January of that same year.
8 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42
9 (2d Cir. 2006). Hu initially testified inconsistently with the
10 letter regarding when he began attending the church, he did not
11 proffer any witnesses from the church to corroborate his
12 attendance, and he failed to provide any evidence that he had
13 attended church in the United States between the date the letter
14 was issued in October 2010 and his June 2013 hearing.
15 Accordingly, the agency did not err in finding that Hu
16 failed to satisfy his burden of demonstrating past persecution
17 or a well-founded fear of future persecution on account of his
18 religion. See Chuilu
Liu, 575 F.3d at 196-98. That finding
19 is dispositive of asylum, withholding of removal, and CAT relief
20 because all three claims were based on the same factual
21 predicate. See 8 C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1),
22 (c)(3); Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O=Hagan Wolfe, Clerk
6
