         12-552
         Chen v. Holder
                                                                                        BIA
                                                                                     Hom, IJ
                                                                               A 089 200 528
                           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 29th day of March, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _____________________________________
12
13       ZHI FEI CHEN,
14                Petitioner,
15
16                        v.                                    12-552
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; Paul Fiorino,
28                                     Senior Litigation Counsel; Franklin
29                                     M. Johnson, Jr., Trial Attorney,
 1                           Office of Immigration Litigation,
 2                           U.S. Department of Justice,
 3                           Washington, D.C.
 4
 5        UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DISMISSED in part and DENIED in part.

 9        Zhi Fei Chen, a native and citizen of China, seeks

10   review of a January 17, 2012, order of the BIA affirming the

11   July 28, 2010, decision of Immigration Judge (“IJ”) Sandy K.

12   Hom, which denied his application for asylum, withholding of

13   removal, and relief under the Convention Against Torture

14   (“CAT”).   In re Zhi Fei Chen, No. A 089 200 528 (B.I.A. Jan.

15   17, 2012), aff’g No. A 089 200 528 (Immig. Ct. N.Y. City

16   July 28, 2010).   We assume the parties’ familiarity with the

17   underlying facts and procedural history in this case.

18   I.   Asylum - Pretermission

19        In pretermitting Chen’s asylum application as untimely,

20   the agency found that he failed to present clear and

21   convincing evidence that the application was filed within

22   one year of his arrival in the United States, as required

23   under 8 U.S.C. § 1158(a)(2)(B).    We lack jurisdiction to

24   review this determination.    See 8 U.S.C. § 1158(a)(3).


                                    2
 1   While we retain jurisdiction to review constitutional claims

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

 3   challenges only the agency’s factual determinations, see

 4   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d

 5   Cir. 2006).     Accordingly, we dismiss his petition for review

 6   as to asylum.

 7   II. Withholding of Removal

 8          We retain jurisdiction to review the agency’s denial of

 9   withholding of removal.     Under the circumstances of this

10   case, we have reviewed the IJ’s decision as modified by the

11   BIA.     See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

12   520, 522 (2d Cir. 2005).     The applicable standards of review

13   are well-established.     See 8 U.S.C. § 1252(b)(4)(B); see

14   also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.

15   2009).

16          The agency concluded that Chen failed to provide

17   sufficient evidence to corroborate his claim that he would

18   face persecution or torture in China because of his practice

19   of Falun Gong.     Under the REAL ID Act, which applies in this

20   case, “[t]he testimony of the applicant may be sufficient to

21   sustain the applicant’s burden without corroboration, but

22   only if . . . the applicant’s testimony is credible, is


                                     3
 1   persuasive, and refers to specific facts . . . In

 2   determining whether the applicant has met the applicant’s

 3   burden, the trier of fact may weigh the credible testimony

 4   along with other evidence of record,” 8 U.S.C.

 5   § 1158(b)(1)(B)(ii); 8 U.S.C. § 1231(b)(3)(C).   Because

 6   Chen’s testimony was confusing and imprecise, and the

 7   documents Chen did present provided no greater insight into

 8   his claim than his testimony, the agency did not err in

 9   finding he failed to meet his burden of proof.   See 8 U.S.C.

10   § 1158(b)(1)(B)(i).

11       Specifically, because Chen testified that he began to

12   practice Falun Gong in order to treat a skin disorder for

13   which he had been diagnosed and treated by a doctor who

14   prescribed various medications, the IJ reasonably required

15   Chen to provide medical records or statements from treating

16   physicians to corroborate his claim that he had suffered

17   from a skin disease.   See Chuilu Liu v. Holder, 575 F.3d

18   193, 198 (2d Cir. 2009).   The IJ reasonably found Chen’s

19   explanation for the missing records, that “they say they

20   don’t have it because it’s a small things, they don’t have

21   the records,” insufficient, particularly in light of the

22   absence of proof that Chen or his family had attempted to


                                   4
 1   obtain the records.    See Diallo v. INS, 232 F.3d 279, 284

 2   (2d Cir. 2000); see also Majidi v. Gonzales, 430 F.3d 77,

 3   80-81 (2d Cir. 2005)(holding that agency need not credit an

 4   applicant’s explanations unless those explanations would

 5   compel a reasonable fact-finder to do so).

 6         Furthermore, given Chen’s general testimony regarding

 7   the circumstances surrounding his release from detention,

 8   the agency reasonably required Chen to provide government

 9   records or statements from his family to corroborate his

10   testimony that his parents paid a fine to secure his release

11   from detention.   Chen’s testimony alone that he did not

12   “dare to get” a payment confirmation did not compel the

13   agency to conclude that corroborating evidence was not

14   available.    See Chuilu Liu, 575 F.3d at 196-99; Majidi, 430

15   F.3d at 80-81.

16         Moreover, the agency reasonably found that Chen failed

17   to demonstrate a likelihood of future persecution in China

18   on account of his practice of Falun Gong, because Chen did

19   not   provide any evidence of his continued practice of Falun

20   Gong in the United States, and had applied for, and obtained

21   without incident, a passport from the Chinese consulate in

22   New York.    See 8 C.F.R. § 1208.16(b)(2) (noting that absent


                                    5
 1   a showing of past persecution, an applicant for withholding

 2   of removal must show that it is “more likely than not” that

 3   he would suffer future persecution based on a statutory

 4   ground if returned to the country of removal).   Because we

 5   find no error in the agency’s determination that Chen failed

 6   to meet his burden, we deny the petition as to withholding

 7   of removal.   Chen has not separately challenged the denial

 8   of CAT relief.

 9       For the foregoing reasons, the petition for review is

10   DISMISSED in part and DENIED in part.   Because we have

11   completed our review, any stay of removal that the Court

12   previously granted in this petition is VACATED, and any

13   pending motion for a stay of removal in this petition is

14   DISMISSED as moot.   Any pending request for oral argument in

15   this petition is DENIED in accordance with Federal Rule of

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

17   34.1(b).

18                               FOR THE COURT:
19                               Catherine O’Hagan Wolfe, Clerk




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