         10-126-ag
         Li v. Holder
                                                                                        BIA
                                                                                   Sichel, IJ
                                                                               A094 787 512
                         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 25 th day of January, two thousand eleven.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                REENA RAGGI,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       _______________________________________
12
13       QI MING LI,
14                Petitioner,
15
16                      v.                                      10-126-ag
17                                                              NAC
18
19       ERIC H. HOLDER, JR., U.S. ATTORNEY
20       GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Gary J. Yerman, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney General;
27                                     Terri J. Scadron, Assistant Director;
28                                     Manuel  A.   Palau,   Trial   Attorney,
29                                     Office   of  Immigration    Litigation,
30                                     United States Department of Justice,
31                                     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          Qi Ming Li, a native and citizen of the People’s Republic

6    of China, seeks review of a December 22, 2009, order of the

7    BIA affirming the February 5, 2008, decision of Immigration

8    Judge (“IJ”) Helen Sichel, which denied his application for

9    asylum,      withholding   of    removal,     and     relief    under     the

10   Convention Against Torture (“CAT”).             In re Qi Ming Li, No.

11   A094 787 512 (B.I.A. Dec. 22, 2009), aff’g No. A094 787 512

12   (Immig. Ct. N.Y. City Feb. 5, 2008). We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15         Li challenges the agency’s denial of his application for

16   asylum, withholding of removal, and CAT relief.                   Under the

17   circumstances of this case, we review the IJ’s decision as

18   supplemented and modified by the BIA’s decision.               See Xue Hong

19   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

20   2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

21   The applicable standards of review are well-established.                  See

22   8   U.S.C.   §   1252(b)(4);    see   also   Manzur   v.   U.S.   Dep’t    of


                                           2
1    Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).

2    I.     Past Persecution

3           We find no error in the agency’s determination that the

4    harm    Li   allegedly   suffered    in   China   was   not    sufficiently

5    severe to rise to the level of persecution.              See Ivanishvili

6    v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)

7    (“[P]ersecution does not encompass mere harassment” ); cf. Baba

8    v. Holder, 569 F.3d 79, 81 (2d Cir. 2009) (“Daily beatings, a

9    near-starvation diet, and a death threat, administered by the

10   national police during a week-long detention in harsh prison

11   conditions . . . satisfy the standard for persecution . . .

12   .”).

13   II.    Well-Founded Fear of Persecution

14          We also find no error in the agency’s determination that

15   Li     failed   to   establish   a    well-founded      fear     of   future

16   persecution given his failure to provide reasonably available

17   corroboration. “In determining whether the applicant has met

18   [his] burden, the [agency] may weigh the credible testimony

19   along with other evidence of record,” and where the agency

20   “determines that the applicant should provide evidence that

21   corroborates otherwise credible testimony, such evidence must

22   be provided unless the applicant does not have the evidence


                                          3
1    and   cannot   reasonably   obtain   the   evidence.”        8    U.S.C.

2    § 1158(b)(1)(B)(ii).        Here, the BIA pointed out that the

3    letter Li’s parents provided failed to mention his alleged

4    detention in 2004 or that police sought to arrest him in 2005,

5    despite his testimony that they had knowledge of both of these

6    events.   Moreover, the agency found that Li failed to provide

7    an affidavit from the friend he allegedly visited after his

8    encounter with Chinese officials, despite the fact that the

9    friend now lives in Canada and Li remains in contact with this

10   person.    Thus, the agency did not err in finding that Li

11   failed    to    provide   adequate   and    reasonably       available

12   corroboration for his claimed fear of future persecution.              See

13   id.

14         Additionally, we are unpersuaded by Li’s assertion that,

15   under the REAL ID Act, the IJ erred in failing to afford him

16   notice    of   the   corroboration   she   found   lacking       and    an

17   opportunity to remedy this evidentiary shortcoming.              We have

18   held that the IJ’s designation of missing corroboration need

19   not be done prior to the disposition of an alien’s claim.              See

20   Chuilu Liu v. Holder, 575 F.3d 193, 198-99 (2d Cir. 2009) .

21   Although the Court in Chuilu Liu limited its holding to pre-

22   REAL ID Act cases, Li points to no language in the REAL ID Act


                                      4
1    providing for the notice requirement he urges.            Moreover, such

2    a requirement would contradict the immigration court’s rule

3    that all supporting evidence be filed in advance of the merits

4    hearing   and   would    require   the    IJ    to   conduct   two   merits

5    hearings in many cases, causing considerable delay.

6        Furthermore,        contrary   to    Li’s    argument,     the   agency

7    specifically considered his fear of future persecution based

8    on his testimony that he will join an underground church upon

9    return to China and inevitably be arrested for proselytizing

10   to others, and reasonably determined that Li’s fear was too

11   speculative to be objectively reasonable.             See Jian Xing Huang

12   v. U.S. INS, 421 F.3d 125, 128-29 (2d Cir. 2005).

13       Finally, because Li was unable to show the objective

14   likelihood of persecution needed to make out an asylum claim,

15   and because his claims for withholding of removal and CAT

16   relief were based on the same factual predicate as his asylum

17   claim, he was necessarily unable to meet the higher standard

18   required to succeed on a claim for withholding of removal or

19   CAT relief.     See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

20   2006); Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991); see

21   also Yang, 426 F.3d at 523.

22       For the foregoing reasons, the petition for review is

23   DENIED.   As we have completed our review, any stay of removal
                                    5
1    that the Court previously granted in this petition is VACATED,

2    and any pending motion for a stay of removal in this petition

3    is DISMISSED as moot. Any pending request for oral argument in

4    this petition is DENIED in accordance with Federal Rule of

5    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

6    34.1(b).

 7                               FOR THE COURT:
 8                               Catherine O’Hagan Wolfe, Clerk
 9
10




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