         13-173
         Dai v. Holder
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A087 638 610
                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 12th day of May, two thousand fourteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       SONG XIAN DAI,
14                Petitioner,
15
16                       v.                                     13-173
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Jeffrey Lubin, Flushing, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Ernesto H. Molina, Jr.,
27                                     Assistant Director; Tracey N.
28                                     McDonald, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     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

 4   is DENIED.

 5       Petitioner Song Xian Dai, a native and citizen of

 6   China, seeks review of a December 21, 2012, order of the

 7   BIA, affirming without opinion the September 27, 2010,

 8   decision of an Immigration Judge (“IJ”), which pretermitted

 9   his application for asylum and denied his application for

10   withholding of removal and relief under the Convention

11   Against Torture (“CAT”).   In re Song Xian Dai, No. A087 638

12   610 (B.I.A. Dec. 21, 2012), aff’g No. A087 638 610 (Immig.

13   Ct. New York City Sept. 27, 2010).   We assume the parties’

14   familiarity with the underlying facts and procedural history

15   in this case.

16       Under the circumstances of this case, the Court should

17   review the IJ’s decision as the final agency determination.

18   See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).

19   The applicable standards of review are well established.

20   See 8 U.S.C. § 1252(b)(4)(B); Yan Chen v. Gonzales, 417 F.3d

21   268, 271 (2d Cir. 2005).

22       Under 8 U.S.C. § 1252(d)(1), we “may review a final

23   order of removal only if . . . the alien has exhausted all

                                   2
 1   administrative remedies available to the alien as of right.”

 2   On appeal to the BIA, the alien must raise each category of

 3   relief subsequently raised in this Court.   See Karaj v.

 4   Gonzales, 462 F.3d 113, 119 (2d Cir. 2006). In this case,

 5   Dai, pro se, filed a Notice of Appeal to the BIA stating,

 6   “The IJ failed to address whether the activities would

 7   render a risk that my life or freedom would be threatened if

 8   returned to China.” Because we construe pro se submissions

 9   generously, we find Dai sufficiently challenged the denial

10   of withholding of removal and CAT relief to invoke our

11   jurisdiction.   See Estelle v. Gamble, 429 U.S. 97, 106

12   (1976); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,

13   474-75 (2d Cir. 2006); Theodoropoulos v. I.N.S., 358 F.3d

14   162, 171 (2d Cir. 2004) (“at least one of the purposes

15   served by the exhaustion requirement contained in § 1252(d)

16   is to ensure that the INS, as the agency responsible for

17   construing and applying the immigration laws and

18   implementing regulations, has had a full opportunity to

19   consider a petitioner’s claims before they are submitted for

20   review by a federal court.”).

21       Withholding of removal under 8 U.S.C. § 1231(b)(3) is a

22   mandatory form of relief that requires the applicant to show


                                     3
 1   that it is more likely than not that his “life or freedom

 2   would be threatened in [that] country because of [his] race,

 3   religion, nationality, membership in a particular social

 4   group, or political opinion.” 8 C.F.R. § 1208.16(b)(1);

 5   Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

 6   Because Dai filed his application in 2009, it is subject to

 7   the provisions of the REAL ID Act, which states, among other

 8   things, that, “Where the trier of fact determines that the

 9   applicant should provide evidence that corroborates

10   otherwise credible testimony, such evidence must be provided

11   unless the applicant does not have the evidence and cannot

12   reasonably obtain the evidence.”   See 8 U.S.C. §

13   1158(b)(1)(B)(ii); see also Yan Juan Chen v. Holder, 658

14   F.3d 246, 252 (2d Cir. 2011); Chuilu Liu v. Holder, 575 F.3d

15   193, 198 (2d Cir. 2009).

16       Here, Dai offered no evidence that the authorities were

17   actually aware of his participation in Falun Gong, nor any

18   evidence that they were likely to discover it.      See

19   Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008);

20   see also Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.

21   2005).   Furthermore, the IJ reasonably found that Dai had

22   failed to corroborate his claim; he did not make his wife


                                   4
 1   available to testify, nor did he offer an affidavit from

 2   her, even though she also claims to practice Falun Gong and

 3   was applying for immigration benefits on that basis as well.

 4   Dai’s explanation that she was at home taking care of his

 5   niece’s children did not explain why she had not submitted

 6   even a statement on his behalf.    Chuilu Liu, 575 F.3d at

 7   198.    Dai also did not make his Falun Gong teacher

 8   available, and indeed, had not even asked her to testify or

 9   submit a statement.    Dai’s wife and Falun Gong teacher were

10   reasonably available and their absence was notable.     See Yan

11   Juan Chen, 658 F.3d at 252 (permitting the IJ to require

12   “reasonably available corroborating evidence” to support the

13   application).

14          While Dai offered his niece to testify that he

15   practiced Falun Gong, she was unable to confidently identify

16   Dai’s activities as Falun Gong.    The IJ reasonably gave her

17   testimony diminished weight.    See Xiao Ji Chen v. U.S. Dep’t

18   of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that

19   the weight afforded to an applicant’s evidence in

20   immigration proceedings “lies largely within the discretion”

21   of the agency.    Thus, the agency reasonably concluded that

22   Dai failed to meet his burden of proof to demonstrate that

23   it was more likely than not that he would be persecuted on
                                    5
 1   account of his Falun Gong activities.      8 U.S.C.

 2   § 1231(b)(3); Chuilu Liu, 575 F.3d at 198.     As his CAT claim

 3   was based on the same factual predicate, its denial was also

 4   reasonable.   See Mu Xiang Lin v. U.S. Dep’t of Justice, 432

 5   F.3d 156, 160-61 (2d Cir. 2005).

 6       For the foregoing reasons, the petition for review is

 7   DENIED.   As we have completed our review, any stay of

 8   removal that the Court previously granted in this petition

 9   is VACATED, and any pending motion for a stay of removal in

10   this petition is DISMISSED as moot.     Any pending request for

11   oral argument in this petition is DENIED in accordance with

12   Federal Rule of Appellate Procedure 34(a)(2), and Second

13   Circuit Local Rule 34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk
16
17




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