     18-229
     Chen v. Barr
                                                                                  BIA
                                                                            Brennan, IJ
                                                                          A202 047 998

                         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
 2   for the Second Circuit, held at the Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 16th day of December, two thousand nineteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            PETER W. HALL,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHI XUN CHEN,
14            Petitioner,
15
16                  v.                                           18-229
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Dehai Zhang, Flushing, NY.
24
25   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
26                                    Attorney General; Jessica E.
27                                    Burns, Senior Litigation Counsel;
28                                    Rosanne M. Perry, Trial Attorney,
29                                    Office of Immigration Litigation,
30                                    United States Department of
31                                    Justice, Washington, DC.
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

4    is DISMISSED in part and DENIED in part.

5           Petitioner Zhi Xun Chen, a native and citizen of the

6    People’s Republic of China, seeks review of a January 5, 2018,

7    decision of the BIA affirming a May 2, 2017, decision of an

8    Immigration Judge (“IJ”) denying his application for asylum,

9    withholding     of    removal,     and       relief   under   the   Convention

10   Against Torture (“CAT”).            In re Zhi Xun Chen, No. A202 047

11   998 (B.I.A. Jan. 5, 2018), aff’g No. A202 047 998 (Immig. Ct.

12   N.Y. City May 2, 2017).            We assume the parties’ familiarity

13   with the underlying facts and procedural history.

14     A. Scope and Standards of Review

15          Under the circumstances of this case, we have considered

16   both    the   IJ’s    and   the   BIA’s       opinions   “for   the    sake   of

17   completeness.”        Wangchuck v. Dep’t of Homeland Security, 448

18   F.3d 524, 528 (2d Cir. 2006).                 The applicable standards of

19   review are well established.                 See 8 U.S.C. § 1252(b)(4)(B);

20   Wei Sun v. Sessions, 883 F.3d 23, 27 (2d Cir. 2018).

21     B. Asylum: One Year Bar

22          An alien is ineligible for asylum “unless the alien

23   demonstrates     by    clear      and    convincing      evidence     that    the

                                              2
1    application has been filed within 1 year after the date of

2    the    alien’s   arrival    in    the       United    States.”         8   U.S.C.

3    § 1158(a)(2)(B).         An application may be considered outside

4    the deadline “if the alien demonstrates . . . extraordinary

5    circumstances       relating           to      the       delay,”        8 U.S.C.

6    § 1158(a)(2)(D),     and    the       application        is    filed   within    a

7    reasonable time, 8 C.F.R. § 1208.4(a)(4)(ii), (5).

8           Our   jurisdiction    to       review       the     agency’s     findings

9    regarding the timeliness of an asylum application and the

10   circumstances      excusing           untimeliness            is   limited      to

11   “constitutional     claims       or    questions      of      law.”     8 U.S.C.

12   § 1252(a)(2)(D); see 8 U.S.C. § 1158(a)(3).                    Chen admits that

13   the record was unclear as to his entry, and he has not raised

14   a constitutional or legal challenge to the agency one-year

15   bar determination.         Accordingly, we lack jurisdiction to

16   review that determination and dismiss the petition to that

17   extent.

18        C. Withholding of Removal and CAT

19          “The testimony of the applicant may be sufficient to

20   sustain the applicant’s burden without corroboration, but

21   only if the applicant satisfies the trier of fact that the

22   applicant’s testimony is credible, is persuasive, and refers

23   to    specific   facts     sufficient         to     demonstrate       that   the

                                             3
1    applicant is a refugee.”             8 U.S.C. § 1158(b)(1)(B)(ii); see

2    also id. § 1231(b)(3)(C); Wei Sun, 883 F.3d at 28.                         “In

3    determining whether the applicant has met the applicant’s

4    burden, the trier of fact may weigh the credible testimony

5    along with other evidence of record.                Where the trier of fact

6    determines that the applicant should provide evidence that

7    corroborates otherwise credible testimony, such evidence must

8    be provided unless the applicant does not have the evidence

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

10   § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C).

11         The IJ reasonably required evidence to corroborate Chen’s

12   testimony given that his credibility was questionable and his

13   testimony unpersuasive.              See 8 U.S.C. § 1158(b)(1)(B)(ii),

14   (iii); see also Wei Sun, 883 F.3d at 28.                     For example, the

15   IJ reasonably found Chen’s demeanor hesitant and evasive at

16   times, his testimony regarding the alleged beating and his

17   resulting      injuries        lacked     details,     and    his    testimony

18   regarding      the      date    he      sought     medical    treatment    was

19   inconsistent with his medical evidence.                Further, the agency

20   did   not   err    in    finding     that    Chen    failed    to   adequately

21   corroborate his claim because, other than his evidence that

22   was inconsistent with his testimony, he submitted only an

23   unsworn letter from a friend, which the agency was not

                                              4
1    compelled to credit.           See Y.C. v. Holder, 741 F.3d 324, 334

2    (2d Cir. 2013).

3           For these reasons, the agency did not err in finding that

4    Chen    failed   to   satisfy     his   burden   of    establishing   past

5    persecution or a likelihood of persecution with sufficient

6    corroboration.            See       8 U.S.C.      §§ 1158(b)(1)(B)(ii),

7    1231(b)(3)(C); see also Wei Sun, 883 F.3d at 28.              That finding

8    is dispositive of withholding of removal and CAT relief

9    because    those      claims    were    based    on    the   same   factual

10   predicate.*      See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d

11   Cir. 2006).

12          For the foregoing reasons, the petition for review is

13   DISMISSED in part and DENIED in part.                 All pending motions

14   and applications are DENIED and stays VACATED.

15                                       FOR THE COURT:
16                                       Catherine O’Hagan Wolfe
17                                       Clerk of Court




     * Contrary to the BIA’s and Government’s contention that Chen
     waived CAT, the IJ provided no new basis for denying CAT
     relief other than the lack of record evidence and thus Chen’s
     challenge to the denial of withholding necessarily includes
     a challenge to the denial of CAT.
                                   5
