         10-2807-ag
         Hasan v. Holder
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A098 930 131
                                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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 27th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _______________________________________
12
13       ABED HASAN,
14                Petitioner,
15
16                         v.                                   10-2807-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Saleem S. Rizvi, New York, New York.
24
25       FOR RESPONDENT:                 Tony West, Assistant Attorney
26                                       General; Blair T. O’Connor,
27                                       Assistant Director; Holly M. Smith,
28                                       Senior Litigation Counsel, 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 Abed Hasan, a native and citizen of

 6   Pakistan, seeks review of a June 18, 2010, order of the BIA

 7   affirming the July 23, 2008, decision of Immigration Judge

 8   (“IJ”) Philip J. Montante, Jr., denying his application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).    In re Abed Hasan No.

11   A098 930 131 (B.I.A. June 18, 2010), aff’g No. A098 930 131

12   (Immig. Ct. Buffalo July 23, 2008).    We assume the parties’

13   familiarity with the underlying facts and procedural history

14   of the case.

15       Under the circumstances of this case, we have reviewed

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

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

18   Cir. 2005).    The applicable standards of review are well

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

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

21       Hasan raises the following three challenges to the

22   BIA’s burden of proof finding: (1) the IJ failed to admit

23   some of the evidence he proffered; (2) the IJ gave

                                    2
 1   insufficient weight to the evidence he did submit; and (3)

 2   he provided adequate corroborating documents to support his

 3   claim.       The first two of those challenges are unexhausted

 4   because Hasan did not raise them before the BIA.       See Foster

 5   v. INS, 376 F.3d 75, 78 (2d Cir. 2004).       However, the third

 6   challenge is exhausted as it was the basis for the BIA’s

 7   decision. See Ruiz-Martinez v. Mukasey, 516 F.3d 102, 112

 8   n.7 (2d Cir. 2008).1

 9       Substantial evidence supports the BIA’s determination

10   that Hasan failed to meet his burden of proof as to his

11   eligibility for asylum based on his Shia religion and his

12   involvement with a Shia welfare organization.       The BIA

13   reasonably concluded that Hasan had not sufficiently

14   corroborated his claim because he did not provide:

15   (1) letters or affidavits from his family members living in

16   the United States; (2) information regarding his Canadian

17   asylum application; (3) information about the existence of,

18   or his membership in, the Shia welfare organization; and

19   (4) letters from the friends with whom he stayed while


              1
            We      do not consider Hasan’s challenges to the IJ’s
       adverse      credibility determination, or his finding that
       Hasan’s      asylum application was not timely filed, because
       the BIA      did not rely on those findings in its decision.
       See Xue      Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
       522 (2d      Cir. 2005).
                                       3
 1   hiding in Pakistan.    See 8 U.S.C. § 1158(b)(1)(B)(ii);

 2   Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5 (2d Cir. 2009)

 3   (providing that corroboration may be expected where

 4   “reasonably available” even where testimony is credible).

 5       With respect to the affidavits from family members and

 6   documentation regarding his Canadian asylum application,

 7   Hasan admitted that he could have obtained those documents.

 8   He does not assert that the evidence was unavailable, and

 9   was unable to provide adequate explanations for his failure

10   to present those documents at his merits hearing.     8 U.S.C.

11   § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 198 n.6

12   (stating that the alien bears the ultimate burden of

13   introducing such evidence without prompting from the IJ).

14   Furthermore, Hasan does not specifically challenge the

15   agency’s finding that he failed to provide corroboration

16   regarding the welfare organization or letters from any of

17   his friends or relatives remaining in Pakistan, and he does

18   not assert that he attempted to obtain those documents or

19   was unable to do so.   We have held that the agency’s

20   designation of missing corroboration need not be done prior

21   to the disposition of an alien’s claim.    See Chuilu, 575

22   F.3d at 198-99; see also 8 U.S.C. § 1158(b)(1)(B)(ii).

23   Accordingly, as the BIA reasonably concluded, Hasan failed

                                    4
 1   to meet his burden of proof because he did not sufficiently

 2   corroborate his claim based on his Shia religion.     See

 3   8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu, 575 F.3d at 196-97.

 4       Because Hasan failed to establish his eligibility for

 5   asylum, he necessarily was unable to meet the higher

 6   standard to establish his eligibility for withholding of

 7   removal.     See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

 8   2006).     The BIA applied the correct legal standard to

 9   Hasan’s CAT claim, as it considered whether there was a

10   likelihood that Hasan would be tortured either by the

11   government or with the government’s acquiescence.     See

12   Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).

13       For the foregoing reasons, the petition for review is

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

15   removal that the Court previously granted in this petition

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

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

18   oral argument in this petition is DENIED in accordance with

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

20




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1   Circuit Local Rule 34.1(b).

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4                             FOR THE COURT:
5                             Catherine O’Hagan Wolfe, Clerk
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