         12-202
         Lin v. Holder
                                                                                        BIA
                                                                                   Ferris, IJ
                                                                               A098 350 180
                              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 14th day of May, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                GERARD E. LYNCH,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _______________________________________
12
13       QIANG LIN,
14                Petitioner,
15
16                       v.                                     12-202
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Cora J. Chang, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Linda S. Wernery,
27                                     Assistant Director; Gerald M.
28                                     Alexander, Trial Attorney, Office of
29                                     Immigration Litigation, Civil
30                                     Division, United States Department
31                                     of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review is DENIED.

 5       Petitioner Qiang Lin, a native and citizen of the

 6   People’s Republic of China, seeks review of a December 27,

 7   2011, order of the BIA affirming the March 23, 2010,

 8   decision of Immigration Judge (“IJ”) Noel A. Ferris, denying

 9   his application for asylum, withholding of removal, and

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

11   Qiang Lin, No. A098 350 180 (B.I.A. Dec. 27, 2011), aff’g

12   No. A098 350 180 (Immig. Ct. N.Y. City Mar. 23, 2010).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history of the case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as supplemented and modified by the BIA.

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

18   The applicable standards of review are well-established.

19   See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20   To the extent Lin challenges the IJ’s denial of CAT relief,

21   we are without jurisdiction to consider that claim, see

22   8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119


                                  2
 1   (2d Cir. 2006), and because Lin does not argue here that he

 2   suffered past harm rising to the level of persecution, we

 3   address only his argument regarding a well-founded fear of

 4   future persecution on account of his practice of Falun Gong.

 5       “While consistent, detailed, and credible testimony may

 6   be sufficient to carry the alien’s burden, evidence

 7   corroborating his story, or an explanation for its absence,

 8   may be required where it would reasonably be expected.”

 9   Diallo v. INS, 232 F.3d 279, 285 (2d Cir. 2000).      Before

10   denying a claim solely because of an applicant’s failure to

11   provide corroborating evidence, the agency must “explain

12   specifically, either in its decision or otherwise in the

13   record . . . why it is reasonable . . . to expect such

14   corroboration; and [] why . . . explanations for the lack of

15   such corroboration are insufficient.”   Id. at 290.

16       Here, the IJ identified the type of evidence that Lin

17   would have to present to corroborate his claim — documents

18   or photos to show that the Chinese police sought him out and

19   destroyed his home in 2004; any evidence that the police

20   continued to look for him; and witnesses to testify that he

21   was a practitioner of Falun Gong — and adjourned proceedings

22   in order to allow Lin to obtain such documentation and


                                  3
 1   witnesses to testify on his behalf.   Lin neither provided

 2   this additional corroborating evidence to the IJ nor

 3   satisfactorily explained either why he was unable to provide

 4   such documentation or why it would be unreasonable to expect

 5   such documentation.   Lin conceded that he was aware that the

 6   IJ had advised him to bring witnesses to testify on his

 7   behalf, but chose not to, and that he did not ask any

 8   potential witnesses for affidavits.   Lin further testified

 9   that there was no warrant for his arrest in China, and that

10   the police there were no longer looking for him.

11       In his appeal to the BIA, Lin stated only that he asked

12   several witnesses to testify on his behalf, but that they

13   were either “unavailable” or “didn’t want to.”     Accordingly,

14   because the agency identified the required evidence and gave

15   Lin time to obtain it, and because Lin failed to reasonably

16   explain why such evidence was unavailable, the agency did

17   not err in relying on his lack of corroboration and

18   determining that his testimony alone could not establish a

19   well-founded fear of future persecution.   See Majidi v.

20   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that

21   agency need not credit an applicant’s explanations unless

22   those explanations would compel a reasonable fact-finder to

23   do so); Diallo, 232 F.3d at 285-86, 290.

                                   4
 1       Lin argues that the agency erred in according limited

 2   weight to the letters from his family members, friend, and

 3   neighbor regarding the events of 2004.   However, the weight

 4   afforded to an applicant’s evidence in immigration

 5   proceedings lies largely within the discretion of the

 6   agency, and the BIA did not err in giving minimal weight to

 7   the letters from Lin’s family members because they were

 8   prepared by interested parties in anticipation of

 9   proceedings.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

10   F.3d 315, 342 (2d Cir. 2006); see also Qin Wen Zheng v.

11   Gonzales, 500 F.3d 143, 149 (2d Cir. 2007).   Furthermore,

12   even if the letters were to be accorded full evidentiary

13   weight, the authors discuss only the attempt by Chinese

14   police to arrest Lin in June 2004, and do not give any

15   indication that government officials have continued to seek

16   Lin out, or are aware of his whereabouts or activities.      See

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

18   (“to establish a well-founded fear of persecution in the

19   absence of any evidence of past persecution, an alien must

20   make some showing that authorities in his country of

21   nationality are either aware of his activities or likely to

22   become aware of his activities”).   Finally, as the agency


                                   5
 1   notes, the letter from Lin’s friend is unpersuasive in

 2   showing that Lin would face persecution if he returned to

 3   China because the friend, who introduced Lin to Falun Gong

 4   and whom the police also attempted to arrest in June 2004,

 5   has remained in China with no further problems, and was

 6   issued a Resident ID Card by the Changle City Public

 7   Security Bureau in 2006.   See Jian Xing Huang v. INS, 421

 8   F.3d 125, 129 (2d Cir. 2005) (per curiam) (holding that,

 9   absent solid support in the record, an assertion of fear of

10   future persecution was “speculative at best”).

11       Because Lin was unable to show the objective likelihood

12   of persecution needed to make out an asylum claim, he was

13   necessarily unable to meet the higher standard required to

14   succeed on a claim for withholding of removal.   See Paul v.

15   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

16       For the foregoing reasons, the petition for review is

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

18   removal that the Court previously granted in this petition

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

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

21   oral argument in this petition is DENIED in accordance with


                                   6
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).
3
4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6




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