Filed: Dec. 01, 2016
Latest Update: Mar. 03, 2020
Summary: 15-3369 Xia v. Lynch BIA Wright, IJ A201 133 913 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: 15-3369 Xia v. Lynch BIA Wright, IJ A201 133 913 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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15-3369
Xia v. Lynch
BIA
Wright, IJ
A201 133 913
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 1st day of December, two thousand sixteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 YUNKUAN XIA,
14 Petitioner,
15
16 v. 15-3369
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Louis H. Klein, The Kasen Law Firm,
24 PLLC, Flushing, N.Y.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Mary
28 Jane Candaux, Assistant Director;
29 Michael C. Heyse, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Yunkuan Xia, a native and citizen of the
6 People’s Republic of China, seeks review of a September 24, 2015
7 decision of the BIA affirming a July 17, 2012 decision of an
8 Immigration Judge (“IJ”) denying him asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Yunkuan Xia, No. A201 133 913 (B.I.A. Sept. 24,
11 2015), aff’g No. A201 133 913 (Immig. Ct. N.Y. City July 17,
12 2012). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and the BIA’s opinions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); see also Chuilu
19 Liu v. Holder,
575 F.3d 193, 196 (2d Cir. 2009).
20 To qualify for asylum, Xia was required to demonstrate that
21 he suffered past persecution on account of his resistance to
22 the family planning policy or that he has a well-founded fear
2
1 of forced sterilization. See 8 U.S.C. § 1101(a)(42); 8 C.F.R.
2 § 1208.16(b); see also Shi Liang Lin v. U.S. Dep’t of Justice,
3 494 F.3d 296, 305-06, 309-10, 313 (2d Cir. 2007) (holding that
4 alien cannot obtain asylum based on harm suffered by a spouse).
5 The agency did not err in finding that Xia’s burden was not
6 satisfied because he failed to submit reasonably available
7 corroborating evidence.
8 “The testimony of the applicant may be sufficient to
9 sustain the applicant’s burden without corroboration, but only
10 if the applicant satisfies the trier of fact that the
11 applicant’s testimony is credible, is persuasive, and refers
12 to specific facts sufficient to demonstrate that the applicant
13 is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also Chuilu
14
Liu, 575 F.3d at 196-97. In this case, it was reasonable for
15 the agency to require corroboration because Xia’s testimony was
16 not sufficiently detailed to be persuasive. See 8 U.S.C.
17 § 1158(b)(1)(B)(ii) (“Where the trier of fact determines that
18 the applicant should provide evidence that corroborates
19 otherwise credible testimony, such evidence must be provided
20 unless the applicant does not have the evidence and cannot
21 reasonably obtain the evidence.”); see also Chuilu Liu,
575 F.3d
22 at 196-97. Moreover, the agency properly identified the
3
1 missing evidence, noting that Xia failed to submit his marriage
2 certificate, a sterilization notice, or statements from any
3 family or friends. Even crediting Xia’s explanations that he
4 did not want to bother his wife, who suffers from depression,
5 and that he did not keep the sterilization notice from 1999,
6 he failed to explain why he could not obtain his marriage
7 certificate or corroborating statements from his relatives with
8 whom he maintains contact. See Chuilu Liu, 575 F.3d at 198
9 (“[T]he alien bears the ultimate burden of introducing such
10 evidence without prompting from the IJ.”).
11 Accordingly, the agency did not err in finding that Xia
12 failed to satisfy his burden of demonstrating past persecution
13 or a well-founded fear of future persecution under the family
14 planning policy. See
id. at 196-98. That finding is
15 dispositive of asylum, withholding of removal, and CAT relief
16 because all three forms of relief were based on Xia’s family
17 planning claim. See 8 C.F.R. §§ 1208.13(b)(1),
18 1208.16(b)(1)-(2), (c)(3); Paul v. Gonzales,
444 F.3d 148,
19 156-57 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
22 that the Court previously granted in this petition is VACATED,
4
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot. Any pending request for oral argument
3 in this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
5
