    16-380
    Li v. Sessions
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A200 923 678

                          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.

         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
    16th day of October, two thousand seventeen.

    PRESENT:
             REENA RAGGI,
             PETER W. HALL,
             DENNY CHIN,
                  Circuit Judges.
    _____________________________________

    JIN LI,
                     Petitioner,

                     v.                                              16-380
                                                                     NAC

    JEFFERSON B. SESSIONS III, UNITED
    STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                        Lee Ratner, Law Office of Michael
                                           Brown, New York, N.Y.

    FOR RESPONDENT:                        Benjamin C. Mizer, Principal
                                           Deputy Assistant Attorney
                                           General; Anthony P. Nicastro,
                                           Assistant Director; Sabatino F.
                                           Leo, Trial Attorney, Office of
                                Immigration Litigation, United
                                States Department of Justice,
                                Washington, D.C.

      UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DISMISSED IN PART AND DENIED IN PART.

      Petitioner Jin Li, a native and citizen of China, seeks

review of a January 20, 2016, decision of the BIA affirming a

November 14, 2012, decision of an Immigration Judge (“IJ”)

denying Li’s application for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”).             In

re Jin Li, No. A200 923 678 (B.I.A. Jan. 20, 2016), aff’g No.

A200 923 678 (Immig. Ct. N.Y. City Nov. 14, 2012).         We assume

the   parties’    familiarity   with   the   underlying    facts    and

procedural history in this case.

      Under the circumstances of this case, we have reviewed both

the BIA’s and IJ’s decisions “for the sake of completeness.”

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

2006).      The   applicable    standards    of   review   are     well

established. See 8 U.S.C. § 1252(b)(4)(B); Chuilu Liu v.

Holder, 575 F.3d 193, 194, 196 (2d Cir. 2009).




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I.   Asylum

     Absent changed or extraordinary circumstances, an asylum

application must be filed within one year of an applicant’s

arrival in the United States.   8 U.S.C. § 1158(a)(2)(B), (D).

We generally lack jurisdiction to review the denial of asylum

as untimely or the agency’s findings regarding changed or

extraordinary circumstances. We do have jurisdiction, however,

to review “constitutional claims or questions of law.”     Id.

§§ 1158(a)(3), 1252(a)(2)(D); Gui Yin Liu v. INS, 508 F.3d 716,

720-21 (2d Cir. 2007).

     The agency found that Li’s evidence was insufficient to

establish his arrival in the United States within one year of

his filing his asylum application.    We lack jurisdiction to

review that finding and therefore dismiss that part of the

petition      challenging the agency’s denial of Li’s asylum

application      as   being   untimely.      See    8   U.S.C.

§§ 1158(a)(3), 1252(a)(2)(D).

II. Withholding of Removal and CAT Relief

     The agency denied Li’s application for withholding of

removal and CAT relief based on his inability to corroborate

his claims.     The IJ did not err in refusing to allow the

testimony of Li’s additional witnesses.   “Decisions regarding


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the appropriate conduct of a hearing and the submission of

evidence are committed to the discretion of the immigration

judge.”   Ahmed v. Holder, 624 F.3d 150, 156 (2d Cir. 2010); see

8 C.F.R. § 1240.1(c).     Li conceded that he did not timely

provide his witness list.      See Immigration Court Practice

Manual § 3.1(b)(ii)(A).   Nonetheless, Li was not prejudiced by

the exclusion of his witnesses because the IJ offered to adjourn

the hearing to give Li the opportunity to present his witnesses

after proper notice, and Li declined that offer.    Despite Li’s

assertions otherwise, he never proffered his brother as a

witness—he only asked that his brother’s untimely affidavit be

given extra weight because he was present and could have been

cross examined.

    Moreover, it was not unreasonable for the IJ to require Li

to corroborate his claims.   “The testimony of the applicant may

be sufficient to sustain the applicant’s burden without

corroboration, but only if the applicant satisfies the trier

of fact that the applicant’s testimony is credible, is

persuasive, and refers to specific facts sufficient to

demonstrate that the applicant is a refugee.”      8 U.S.C.

§ 1158(b)(1)(B)(ii).    “Where the trier of fact determines that

the applicant should provide evidence that corroborates


                               4
otherwise credible testimony, such evidence must be provided

unless the applicant does not have the evidence and cannot

reasonably obtain the evidence.”    Id.; see also Chuilu Liu, 575

F.3d at 197.    Generally, an IJ should identify specific pieces

of missing documentation, explain why the documentation was

reasonably available, provide the alien with an opportunity to

explain the omission, and assess the explanation that is given.

Chuilu Liu, 575 F.3d at 198.     “No court shall reverse a

determination made by a trier of fact with respect to the

availability of corroborating evidence . . . unless the court

finds . . . that a reasonable trier of fact is compelled to

conclude that such corroborating evidence is unavailable.”      8

U.S.C. § 1252(b)(4).

    Here, the IJ found that Li had not corroborated that he had

attended church in China.     See Xiao Ji Chen v. U.S. Dep’t of

Justice, 471 F.3d 315, 342 (2d Cir. 2006).     The only evidence

Li provided to corroborate his church attendance in China was

a form letter that bore a date that was inconsistent with Li’s

testimony.     Li’s explanations for the inconsistency were not

compelling. It was not unreasonable for the IJ to give the letter

diminished weight.    Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

2005); see also Xiao Ji Chen, 471 F.3d at 342.       It was also


                                5
reasonable for the agency to question Li’s failure to call his

brother as a witness or to offer his brother’s affidavit in

evidence. Li testified that his brother would have been able

to corroborate the events that occurred in China and Li’s

continuing practice of Christianity in the United States.    The

IJ specifically identified the type of corroboration that might

have adequately supplemented Li’s testimony, and Li was given

a sufficient opportunity to respond, Chuilu Liu, 575 F.3d at

198, including the offer to adjourn, described above, which Li

declined.   For those reasons, the agency did not err in denying,

for lack of corroboration, Li’s application for withholding of

removal and CAT relief.     Id. at 198-99; see also Lecaj v.

Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).    Having affirmed

the BIA on this basis, it is unnecessary to consider the BIA’s

additional finding that Li failed to demonstrate that the

mistreatment he experienced rose to the level of persecution.

See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).

III. Due Process

    Aliens in removal proceedings are entitled to due process,

Morgan v. Gonzales, 445 F.3d 549, 552 (2d Cir. 2006); that right

is violated when an alien is “denied a full and fair opportunity

to present [his] claims or [when] the IJ or BIA otherwise


                                6
deprive[] [him] of fundamental fairness,” Burger v. Gonzales,

498 F.3d 131, 134 (2d Cir. 2007) (internal quotation marks

omitted).     “Parties   claiming        denial   of    due   process    in

immigration cases must, in order to prevail, allege some

cognizable prejudice fairly attributable to the challenged

process.” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir.

2008) (internal quotation marks omitted).

    Li argues that the IJ’s exclusion of his additional

witnesses deprived him of due process.             As explained above,

however, Li cannot show he was denied a full and fair opportunity

to present his claims. He declined the IJ’s offer of an

adjournment   that   would   have       allowed   him   to    present   his

witnesses, and Li never proffered his brother as a witness.

    For the foregoing reasons, the petition for review is

DISMISSED in part as to the agency’s denial of asylum as untimely

and DENIED in remaining part.

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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