     14-3283
     Chen v. Lynch
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A200 211 623
                          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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   28th day of January , two thousand sixteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            PETER W. HALL,
10                 Circuit Judges.
11   _____________________________________
12
13   SHENG JIAN CHEN,
14            Petitioner,
15
16                   v.                                              14-3283
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Zhen Liang Li, New York, New York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; John W.
28                                       Blakeley, Assistant Director;
29                                       Francis W. Fraser, Senior Litigation
1                                       Counsel, Office of Immigration
2                                       Litigation, United States
3                                       Department of Justice, Washington,
4                                       D.C.
5
6           UPON DUE CONSIDERATION of this petition for review of a

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

8    ORDERED, ADJUDGED, AND DECREED that the petition for review is

9    DENIED.

10          Petitioner Sheng Jian Chen, a native and citizen of China,

11   seeks review of an August 7, 2014, decision of the BIA affirming

12   a June 19, 2013, decision of an Immigration Judge (“IJ”) denying

13   Chen’s application for asylum, withholding of removal, and

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

15   Sheng Jian Chen, No. A200 211 623 (B.I.A. Aug. 7, 2014), aff’g

16   No. A200 211 623 (Immig. Ct. N.Y. City June 19, 2013).             We assume

17   the    parties’      familiarity    with    the   underlying   facts      and

18   procedural history in this case.

19          Under the circumstances of this case, we have considered

20   both    the   IJ’s    and   the   BIA’s    opinions   “for   the   sake   of

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

22   524, 528 (2d Cir. 2006).           The applicable standards of review



                                           2
1    are well established.      See 8 U.S.C. § 1252(b)(4)(B); Yanqin

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

3        In his asylum application, Chen contended that he feared

4    future persecution on account of his Christianity because

5    Chinese police were aware that he had distributed leaflets on

6    behalf of his church in China, and he continued to be religiously

7    active and proselytize in the United States.   The agency denied

8    Chen’s application because he had not adequately corroborated

9    either that the police in China were aware of his activities

10   there or that he engaged in religious activities in the United

11   States, and he did not provide a compelling reason for the lack

12   of corroboration.

13       The agency may require corroboration despite otherwise

14   credible testimony, and deny an application based on the failure

15   to provide such corroboration, if the corroborating evidence

16   is reasonably available.      8 U.S.C. § 1158(b)(1)(B)(ii); see

17   Yan Juan Chen v. Holder, 658 F.3d 246, 251-52 (2d Cir. 2011).

18   However, the IJ must identify the corroborating evidence that

19   should have been presented, and explain why such evidence would

20   be reasonably available.    Yan Juan Chen, 658 F.3d at 253.   The

21   IJ need not point to the missing evidence and show that it is
                                     3
1    reasonably   available    during       the   hearing;   rather,   it    is

2    sufficient that she do so in her decision.                Chuilu Liu v.

3    Holder, 575 F.3d 193, 197-98 (2d Cir. 2009).

4        Here, the IJ required documentation that the police were

5    aware that Chen had distributed religious leaflets in China.

6    This evidence was reasonably available: Chen had already

7    provided a letter from his friend who, he contended, had given

8    the police his name.     That letter, however, did not corroborate

9    Chen’s contention.     Chen did not identify any reason why the

10   required evidence – a letter with the relevant information –

11   was not reasonably available.           In addition, Chen failed to

12   corroborate any continuing religious practice.              The IJ also

13   required evidence to show that Chen was religiously active in

14   the United States; Chen agreed that witnesses from his church

15   were available to testify, but did not call them.                      His

16   explanation that he did not know he was required to provide such

17   witnesses is not compelling because “the alien bears the

18   ultimate   burden   of    introducing        [corroborating]   evidence

19   without prompting from the IJ.”         See id. at 198.    Because Chen

20   did not offer a compelling explanation that the required

21   evidence was not reasonably available, we defer to the agency’s
                                        4
1    conclusion that Chen did not adequately corroborate his claim.

2    See 8 U.S.C. § 1252(b)(4).

3        Absent the identified evidence, Chen did not adequately

4    show that anyone in China was aware, or likely to become aware,

5    of his religious activities.     See Hongsheng Leng v. Mukasey,

6    528 F.3d 135, 143 (2d Cir. 2008).      While Chen provided a letter

7    from his mother stating that the police had come to her house

8    looking for Chen, the agency was not required to credit the

9    letter because it was from an interested witness not available

10   for cross examination.    See Matter of H-L-H- & Z-Y-Z-, 25 I&N

11   Dec. 209, 215 (B.I.A. 2010), rev’d on other grounds by Hui Lin

12   Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); see also Xiao Ji

13   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).

14       As a result, the agency did not err in concluding that Chen

15   had not met his burden to show a well-founded fear of future

16   persecution.    Because   Chen   was    unable   to   establish   the

17   objective likelihood of harm needed to make out an asylum claim,

18   he was necessarily unable to meet the higher standard required

19   to succeed on a claim for withholding of removal or CAT relief.

20   See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).


                                      5
1        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

8    34.1(b).

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




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