10-2531-ag
Ye v. Holder
                                                                                BIA
                                                                          Abrams, IJ
                                                                        A094 789 122
                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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 10th day of August, two thousand eleven.

PRESENT:
         JON O. NEWMAN,
         RICHARD C. WESLEY,
         PETER W. HALL,
              Circuit Judges.
_____________________________________

RONG YE, AKA YE RONG,
         Petitioner,

               v.                                       10-2531-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                Lee Ratner, Law Offices of Michael
                               Brown, New York, New York.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Keith I. McManus, Senior Litigation
                               Counsel; Tracie N. Jones, 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 GRANTED.

      Rong Ye, a native and citizen of the People’s Republic of

China, seeks review of a June 9, 2010, decision of the BIA,

affirming the July 21, 2008, decision of Immigration Judge

(“IJ”) Steven R. Abrams, which denied his application for

asylum,      withholding     of    removal,     and       relief     under     the

Convention Against Torture (“CAT”).             In re Rong Ye, No. A094

789 122 (B.I.A. June 9, 2010), aff’g No. A094 789 122 (Immig.

Ct.   N.Y.    City    July   21,   2008).      We     assume       the   parties’

familiarity with the underlying facts and procedural history

in this case.

      Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA decision.                       See Xue

Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

2005).       The     applicable    standards        of    review     are     well-

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

Holder, 562 F.3d 510, 513 (2d Cir. 2009).

      Rather    than    addressing    the     IJ’s       adverse    credibility

determination, the BIA found that Ye failed to sustain his

burden of proof because he failed to provide reasonably

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available evidence.       Because the BIA declined to reach the

IJ’s    adverse     credibility    determination,       we   assume   the

credibility of Ye’s testimony.           See Yan Chen v. Gonzales, 417

F.3d   268,   271   (2d   Cir.   2005).      Although   an   applicant’s

credible testimony alone may be enough to carry his burden of

proof, 8 C.F.R. § 208.13(a), the agency may nonetheless

require that the testimony be corroborated if one would

reasonably expect corroborating evidence to be available. See

8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu v. Holder, 575 F.3d

193, 196-98 (2d Cir. 2009); see also Diallo v. INS, 232 F.3d

279, 285 (2d Cir. 2000).

       The BIA found that an affidavit Ye submitted from a

friend in China was of limited evidentiary weight because the

affidavit stated that Ye was arrested after Chinese cadres

“stormed inside,” whereas Ye testified that he was arrested in

an field.     Although Ye argues that the reference to “inside”

might include inside a field, at least in Chinese, the BIA was

not required to accept his explanation for the inconsistency

as it would not necessarily be compelling to a reasonable

fact-finder, and, consequently, it did not err in according

diminished weight to the affidavit.           See Majidi v. Gonzales,

430 F.3d 77, 80-81 (2d Cir. 2005) (holding that an agency need


                                   -3-
not   credit      an   applicant’s    explanations     for   inconsistent

testimony unless those explanations would compel a reasonable

fact-finder to do so); Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315, 342 (2d Cir. 2006) (noting that the weight

accorded     to    evidence    lies    largely    within     the   agency’s

discretion).

      However, the BIA erred in finding that Ye did not submit

reasonably available corroborative evidence without addressing

his explanations.           In particular, the BIA faulted Ye for

failing to corroborate his account with testimony or an

affidavit from his friend, Fei Ye (“Fei”), who was in the

United States, and with whom Ye was practicing Falun Gong at

the time of his arrest in China.             The BIA also found that Ye

failed to corroborate his current practice of Falun Gong with

testimony from his fellow practitioners in the United States.

Ye argues that this evidence was not reasonably available,

because, as he explained to the IJ, Fei did not have legal

immigration status in the United States and his fellow Falun

Gong practitioners were afraid to come to the immigration

court.     Ye further averred before the IJ that Fei was afraid

to come to his attorney’s office to prepare an affidavit.                In

concluding     that    Ye   failed    to    provide   this   corroborating


                                      -4-
evidence,      neither     the   IJ      nor    the    BIA    addressed         Ye’s

explanation for why the evidence was not reasonably available.

       We have held that before the BIA concludes that an alien

has    not    provided    adequate      corroboration        of    an    otherwise

credible claim, it must “explain specifically . . . why [the

alien]’s      proffered     explanations        for    the        lack   of     such

corroboration are insufficient.”                Diallo, 232 F.3d at 290.

Moreover, we have observed that “[i]t might be plausible that

[a petitioner] would be unable to provide statements from

corroborating      witnesses     regarding       his   activities          in   [his

native country], and he might not be expected to do so, if the

only people aware of these activities were . . . people

present in the United States illegally,” because “such people

. . . may understandably desire to keep a low profile.”                         Kyaw

Zwar    Tun   v.   INS,   445    F.3d    554,    568-69      (2d    Cir.      2006).

Accordingly, the agency’s failure to assess Ye’s explanation

as to why corroborative evidence was not reasonably available

warrants remand.         See Diallo, 232 F.3d at 290.

       Finally, we decline to conclude that Ye has waived his

claims to withholding of removal and CAT relief because,

contrary to the government’s argument, Ye has challenged the

BIA’s burden finding, which was the basis of its denial of

Ye’s asylum claim, as well as his claims for withholding of
                                        -5-
removal    and    CAT   relief.     However,   because   Ye     has   never

challenged the IJ’s denial of his application for CAT relief

on the grounds of illegal departure, we consider that argument

abandoned.       See Gui Yin Liu v. INS, 508 F.3d 716, 723 n.6 (2d

Cir. 2007).

    For the foregoing reasons, the petition for review is

GRANTED, the order of removal is VACATED, and the case is

REMANDED to the BIA for proceedings consistent with this

decision.        Any pending request for oral argument in this

petition    is    DENIED   in     accordance   with   Federal    Rule   of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk




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