         12-1836
         Chen v. Holder
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A087 441 615
                           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 June, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       KONG DAO CHEN,
14                Petitioner,
15
16                        v.                                    12-1836
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Nataliya I. Gavlin, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Derek C. Julius,
28                                     Senior Litigation Counsel; Julie S.
29                                     Saltman, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     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 Kong Dao Chen, a native and citizen of the

 6   People’s Republic of China, seeks review of an April 18,

 7   2012, order of the BIA, affirming the May 12, 2010, decision

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

 9   application for asylum and denied his application for

10   withholding of removal and relief under the Convention

11   Against Torture (“CAT”).   In re Kong Dao Chen, No. A087 441

12   615 (B.I.A. Apr. 18, 2012), aff’g No. A087 441 615 (Immig.

13   Ct. N.Y. City May 12, 2010).   We assume the parties’

14   familiarity with the underlying facts and procedural history

15   in this case.

16        We review the decisions of both the IJ and the BIA.

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

18   The applicable standards of review are well established.

19   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng, 562 F.3d at 513.

20   I.   Asylum

21        Title 8, Section 1158(a)(3) of the United States Code

22   provides that no court has jurisdiction to review the

23   agency’s finding that an asylum application was untimely

                                    2
 1   under 8 U.S.C. § 1158(a)(2)(B).      Notwithstanding that

 2   provision, we retain jurisdiction to review constitutional

 3   claims and “questions of law.”      8 U.S.C. § 1252(a)(2)(D).

 4       Here, Chen argues, for the first time, that the agency

 5   erred by not giving him or his witness an opportunity to

 6   explain the inconsistency between the witness’s statement

 7   and her testimony.     However, because Chen did not raise this

 8   argument in his appeal to the BIA, it is unexhausted and we

 9   decline to consider it.     See Foster v. INS, 376 F.3d 75, 78

10   (2d Cir. 2004); see also Lin Zhong v. U.S. Dep’t of Justice,

11   480 F.3d 104, 119-20 (2d Cir. 2007).

12       Chen also asserts that his credible testimony alone

13   should have been sufficient to meet his burden of

14   demonstrating by clear and convincing evidence that he filed

15   for asylum within one year of entry.      In essence, Chen

16   raises a question of law regarding whether the agency

17   applied an inappropriately high burden.      See Li Hua Lin v.

18   U.S. Dep’t of Justice, 453 F.3d 99, 104 (2d Cir. 2006).

19   This argument fails, however, as the agency is permitted to

20   require reasonably available corroborating evidence even

21   where the testimony was credible.      See 8 U.S.C.

22   § 1158(b)(1)(B)(ii).     Because the only corroborating


                                     3
 1   evidence was inconsistent, the agency did not apply too high

 2   a burden in finding that the evidence was not “clear and

 3   convincing” as required by the statute.    See 8 U.S.C.

 4   § 1158(a)(2)(B); see also Li Hua Lin, 453 F.3d at 104-05.

 5   II.       Withholding of Removal and CAT

 6         Under the REAL ID Act, which applies to this case,

 7   credible testimony may be sufficient to sustain an

 8   applicant’s burden of proof without corroboration.     8 U.S.C.

 9   §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C); see also Chuilu Liu v.

10   Holder, 575 F.3d 193, 196-98 (2d Cir. 2009).    However, when

11   an IJ “determines that the applicant should provide evidence

12   that corroborates otherwise credible testimony, such

13   evidence must be provided unless the applicant does not have

14   the evidence and cannot reasonably obtain the evidence.”

15   8 U.S.C. §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C).   Before

16   denying a claim solely based on an applicant’s failure to

17   provide corroborating evidence, the agency should “explain

18   specifically . . . why it is reasonable . . . to expect such

19   corroboration[ ] and . . . why [the applicant’s] proffered

20   explanations for the lack of such corroboration are

21   insufficient.”   Diallo v. INS, 232 F.3d 279, 290 (2d Cir.

22   2000).   We give substantial deference to an IJ’s


                                   4
 1   determination that corroborating evidence was required and

 2   reasonably available to an applicant.     See Yan Juan Chen v.

 3   Holder, 658 F.3d 246, 252 (2d Cir. 2011).

 4       In this case, the agency noted that Chen had not

 5   submitted medical records or evidence of the nature and

 6   severity of his mistreatment by authorities, and had failed

 7   to offer testimony from anyone at his current church.       The

 8   agency did not err in rejecting Chen’s explanations for the

 9   lack of corroboration and reasonably concluded that Chen

10   failed to offer reasonably available evidence.     Though Chen

11   testified that the medical care he received was from an

12   unlicensed clinic that did not issue receipts, he did not

13   allege that he had attempted to obtain any records or that

14   he could not have obtained a letter from someone who had

15   provided him with care.     In addition, the evidence Chen did

16   submit, a letter from his father, did not mention that Chen

17   received any medical care at all.     Furthermore, Chen’s

18   explanation that no one from his Brooklyn church could

19   testify on his behalf was undermined by the church’s

20   proximity to the hearing location and the absence of any

21   explanation why a pastor or parishioner could not be

22   available telephonically.     Chen provided no explanation for

23   the lack of corroboration relating to the nature and
                                     5
 1   severity of his mistreatment.    We find no basis for reversal

 2   of the agency’s finding.     See 8 U.S.C. § 1252(b)(4)

 3   (providing that no court shall reverse the decision “with

 4   respect to the availability of corroborating evidence”

 5   unless the court is “compelled to conclude that such

 6   corroborating evidence is unavailable”).

 7       Chen also argues that he did offer a number of

 8   documents to corroborate his claim, including two letters

 9   from church members in China, and a letter from the pastors

10   at his church in Brooklyn.     However, the agency was not

11   required to credit those documents, as the documents from

12   China were not signed before the U.S. consul and thus the

13   identity of the authors could not be verified, and the

14   letter from his pastors was not notarized and neither pastor

15   was available to testify.     See Xiao Ji Chen v. U.S. Dep’t of

16   Justice, 471 F.3d 315, 342 (2d Cir. 2006) (stating that the

17   weight afforded to the applicant’s evidence in immigration

18   proceedings lies largely within the discretion of the

19   agency).

20       Because Chen’s claims for withholding of removal and

21   CAT relief both related to his Christian faith, and were

22   based on the same factual predicate, the agency did not err

23   in denying CAT relief on the same ground.     See Paul v.

24   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
                                   6
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

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




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