     17-1034
     Xue v. Whitaker
                                                                                   BIA
                                                                            Vomacka, IJ
                                                                           A087 604 890
                            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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 19th day of December, two thousand
 5   eighteen.
 6
 7   PRESENT:
 8            PETER W. HALL,
 9            DEBRA ANN LIVINGSTON,
10            GERARD E. LYNCH,
11                 Circuit Judges.
12   _____________________________________
13
14   DONGSHENG XUE,
15            Petitioner,
16
17                     v.                                        17-1034
18                                                               NAC
19   MATTHEW G. WHITAKER,
20   ACTING UNITED STATES ATTORNEY
21   GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                   Dongsheng Xue, pro se, Las Vegas,
26                                     NV.
27
28   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
29                                     Attorney General; Linda S.
30                                     Wernery, Assistant Director;
31                                     Brendan Moore, Trial Attorney,
32                                     Office of Immigration Litigation,
1                                  United States Department of
2                                  Justice, Washington, DC.
3
4           UPON DUE CONSIDERATION of this petition for review of a

5    Board of Immigration Appeals (“BIA”) decision, it is hereby

6    ORDERED, ADJUDGED, AND DECREED that the petition for review

7    is DENIED.

8           Petitioner Dongsheng Xue, a native and citizen of the

9    People’s Republic of China, seeks review of a March 14, 2017,

10   decision of the BIA affirming a July 20, 2016, decision of an

11   Immigration Judge (“IJ”) denying Xue’s application for asylum

12   and withholding of removal.        In re Dongsheng Xue, No. A 087

13   604 890 (B.I.A. Mar. 14, 2017), aff’g No. A 087 604 890

14   (Immig. Ct. N.Y. City July 20, 2016).      We assume the parties’

15   familiarity with the underlying facts and procedural history

16   in this case.

17          Under the circumstances of this case, we have reviewed

18   both    the   BIA’s   and   IJ’s   decisions   “for   the   sake   of

19   completeness.”    Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

20   524, 528 (2d Cir. 2006).       The standards of review are well

21   established.     See 8 U.S.C. § 1252(b)(4); Kyaw Zwar Tun v.

22   U.S. INS, 445 F.3d 554, 562–63 (2d Cir. 2006).

23          In the absence of past persecution, Xue had the burden

24   of proving a well-founded fear of persecution on account of
                                        2
1    his practice of Falun Gong or his violation of the family

2    planning policy.      8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i).

3    To do this, he was required to show that he subjectively fears

4    persecution and that his fear is objectively reasonable.

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

6    The   objective    component    can   be   satisfied   either   by

7    establishing “a reasonable possibility that he . . . would be

8    singled out individually for persecution” or “a pattern or

9    practice . . . of persecution of a group of persons similarly

10   situated to [him].”      8 C.F.R. § 1208.13(b)(2)(iii); see also

11   Y.C. v. Holder, 741 F.3d 325, 332 (2d Cir. 2013).         We find

12   no error in the agency’s conclusion that Xue failed to

13   establish an objectively reasonable fear of persecution.

14   I.    Sterilization

15         Xue alleged that Chinese family planning officials

16   sought to sterilize him after he and his wife had a second

17   child in 2007, but he was able to delay the operation until

18   he escaped China in 2009.      The agency reasonably concluded

19   that Xue’s fear of sterilization was speculative because

20   China had since changed its population control policy to

21   allow families to have two children, Xue was not sterilized

22   between 2007 and his 2009 departure from China, and Xue did

                                      3
1    not present any evidence that the authorities still sought

2    to sterilize him or his wife.       Given the lack of evidence

3    that Xue will be targeted for sterilization or that others

4    in his position have been sterilized, his fear of

5    sterilization is speculative.       Jian Xing Huang v. U.S. INS,

6    421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid

7    support in the record,” an asylum applicant’s fear of

8    persecution is “speculative at best”).      The BIA did not err

9    in declining to consider Xue’s claim that he will be

10   sterilized or otherwise punished for leaving China without

11   permission because he did not raise it before the IJ.

12   “[T]he BIA may refuse to consider an issue that could have

13   been, but was not, raised before an IJ,” and in that

14   situation, our “review is limited to whether the BIA erred

15   in deeming the argument waived.”       Prabhudial v. Holder, 780

16   F.3d 553, 555–56 (2d Cir. 2015).      The BIA did not err

17   because Xue did not provide any evidentiary support for

18   this claim despite having an opportunity to do so on

19   remand.   Although the July 2015 letter from Xue’s wife

20   states that Chinese officials know Xue escaped to the

21   United States, she alleged only that he would be arrested

22   for practicing Falun Gong, not that he would be punished

                                     4
1    for leaving China.

2 II.    Falun Gong

3        An IJ may require an asylum applicant to provide

4    evidence that corroborates otherwise credible testimony in

5    order to meet the applicant’s burden of proof for asylum.

6    8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu v. Holder, 575

7    F.3d 193, 198 n. 5 (2d Cir. 2009).   When an IJ determines

8    that corroborating evidence is necessary, the applicant

9    must provide the evidence “unless the applicant does not

10   have the evidence and cannot reasonably obtain the

11   evidence.”    8 U.S.C. § 1158(b)(1)(B)(ii).   We may reverse

12   the agency’s corroboration decision only if “a reasonable

13   trier of fact is compelled to conclude that such

14   corroborating evidence is unavailable.”   8 U.S.C. §

15   1252(b)(4); Yan Juan Chen v. Holder, 658 F.3d 246, 253 (2d

16   Cir. 2011).

17       Given the amount of time that passed between the 2008

18   events and the 2015 remand, Xue’s continuing fear of arrest

19   and mistreatment turned on whether he continued to practice

20   Falun Gong.    Accordingly, it was reasonable for the IJ to

21   require that Xue corroborate his practice of Falun Gong in

22   the United States, either in the form of witness testimony or

                                    5
1    sworn affidavits.    8 U.S.C. § 1158(b)(1)(B)(ii).       Although

2    Xue argues that it was difficult to obtain evidence from

3    China, he does not explain his inability to obtain statements

4    or testimony from witnesses who practiced Falun Gong with him

5    in the United States.     See Chuilu Liu, 575 F.3d at 198-99

6    (placing burden on applicant to explain why the requested

7    evidence was not reasonably available).

8         The agency did not abuse its discretion in declining to

9    credit the evidence Xue did produce.      We generally defer to

10   the agency’s weighing of the documentary evidence.      Y.C., 741

11   F.3d at 334.    Aside from the late-filed evidence that was

12   excluded,1 Xue submitted two 2012 letters from friends in the

13   United States, a 2015 letter from his wife in China, a 2015

14   article about a Falun Gong-related demonstration, and some

15   photographs of himself in Falun Gong positions.       The IJ was

16   not required to credit the letter from Xue’s wife because it

17   was authored by an interested witness who was not available


     1 The IJ did not abuse his discretion in excluding the late-filed
     March 2016 photographs and letters because Xue’s explanation that
     one individual was traveling did not explain why he waited another
     six months to obtain a letter or file the other letter and
     photographs, particularly given the IJ’s explicit warning that
     late-filed evidence would be excluded. 8 C.F.R. § 1003.31(c) (IJ
     has authority to set filing deadlines and exclude late evidence);
     Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008) (reviewing
     exclusion of evidence for abuse of discretion).

                                     6
1    for cross examination.       See Y.C., 741 F.3d at 334 (upholding

2    agency’s decision giving little weight to letter from spouse

3    in China).     One 2012 letter did not mention Xue’s practice

4    of Falun Gong; although the other stated that the author had

5    seen Xue practice Falun Gong, it provided no details or

6    foundation for that statement; and the photographs lacked any

7    foundation.     Id. at 332 (“We generally defer to the agency’s

8    evaluation     of   the   weight    to   be   afforded   an   applicant’s

9    documentary evidence.”).           And the article about an October

10   2015 Falun Gong demonstration in Los Angeles did not link Xue

11   to the demonstration.       Id.

12       Xue’s brief highlights recent country conditions reports

13   that discuss the arrests and mistreatment of Falun Gong

14   practitioners in China.       But this focus misses the mark: the

15   agency   did   not   make   any    findings     regarding     the   current

16   conditions for Falun Gong practitioners because it held that

17   Xue failed to corroborate his continued practice of Falun

18   Gong.

19       In sum, we find no error in the agency’s conclusion that

20   Xue’s fear of sterilization was speculative based on the

21   current country conditions and his personal circumstances,

22   and he did not adequately corroborate his continuing practice

                                          7
1    of Falun Gong.   See 8 U.S.C. § 1252(b)(4)(B); Jian Xing Huang,

2    421 F.3d at 129.     This conclusion is dispositive of asylum

3    and withholding of removal.    Ramsameachire, 357 F.3d at 183.

4        For the foregoing reasons, the petition for review is

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

6    that the Court previously granted in this petition is VACATED,

7    and any pending motion for a stay of removal in this petition

8    is DISMISSED as moot.    Any pending request for oral argument

9    in this petition is DENIED in accordance with Federal Rule of

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

11   34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe,
14                                 Clerk of Court




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