    11-2009-ag
    Liu v. Holder
                                                                                  BIA
                                                                             Cheng, IJ
                                                                          A087 469 098
                         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 22nd day of February, two thousand twelve.
    PRESENT:
             JOSEPH M. McLAUGHLIN,
             ROBERT A. KATZMANN,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _______________________________________

    MEI TING LIU,
             Petitioner,

                    v.                                     11-2009-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Norman Kwai Wing Wong, New York,
                                  N.Y.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; John S. Hogan, Senior
                                  Litigation Counsel; Robbin K. Blaya,
                                  Trial Attorney, Office of
                                  Immigration Litigation, Civil
                                  Division, United States Department
                                  of Justice, Washington, DC
    UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

    Petitioner Mei Ting Liu, a native and citizen of the

People’s Republic of China, seeks review of an April 29,

2011, order of the BIA affirming the August 27, 2009,

decision of Immigration Judge (“IJ”) Mary M. Cheng, denying

his application for asylum, withholding of removal, and

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

Mei Ting Liu, No. A087 469 098 (B.I.A. Apr. 29, 2011), aff’g

No. A087 469 098 (Immig. Ct. N.Y. City Aug. 27, 2009).     We

assume the parties’ familiarity with the underlying facts

and procedural history of the case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented and modified by the BIA.

See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

The applicable standards of review are well-established.

See 8 U.S.C. § 1252(b)(4)(B); see also Chuilu Liu v. Holder,

575 F.3d 193, 196 (2d Cir. 2009).




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I.   Asylum, Withholding of Removal, and CAT Relief

     Substantial evidence supports the agency’s conclusion

that Liu failed to meet his burden of proving eligibility

for relief.   Under the REAL ID Act, “[t]he testimony of the

applicant may be sufficient to sustain the applicant’s

burden without corroboration, but only if the applicant

satisfies the trier of fact that the applicant’s testimony

is credible, is persuasive, and refers to specific facts

sufficient to demonstrate that the applicant is a refugee.”

8 U.S.C. § 1158(b)(1)(B)(ii).       While a failure to

corroborate cannot, without more, support an adverse

credibility determination, “a failure to corroborate can

suffice, without more, to support a finding that an alien

has not met his burden of proof.”       See Chuilu Liu, 575 F.3d

at 198 n.5.   When an IJ "determines that the applicant

should provide evidence that corroborates otherwise credible

testimony, such evidence must be provided unless the

applicant does not have the evidence and cannot reasonably

obtain the evidence."   8 U.S.C. § 1158(b)(1)(B)(ii).

     In this case, the agency was not unreasonable in

requiring corroborating evidence regarding Liu’s claim of

past persecution, as he provided no evidence, other than his


                                3
own testimony, regarding his Christianity, worship at a

house church in China, or his detention and beating by

Chinese authorities.    Moreover, the agency identified the

type of corroborating evidence that Liu reasonably could

have presented to corroborate his claim, and, even crediting

his explanation that he had no letters from his family

because they were afraid Chinese officials would discover

the correspondence, found that he had not adequately

explained “the total absence of supporting evidence to

verify his religious practices or the abuse he suffered by

authorities.”   In re Mei Ting Liu, No. A087 469 098, at *1

(B.I.A. Apr. 29, 2011).    Consequently, substantial evidence

supports the agency’s determination that Liu could

reasonably provide corroborating evidence, and its

determination that Liu’s testimony alone could not establish

past persecution.     See 8 U.S.C. § 1252(b)(4); Chuilu Liu,

575 F.3d at 196-99.

    Because the agency reasonably concluded that Liu did

not establish past persecution, he is not entitled to a

presumption of future persecution.     See 8 C.F.R.

§ 1208.13(b)(1).    With regard to his claim that he has an

independent, well-founded fear of future persecution based


                                4
on his conversion to Mormonism in the United States, the BIA

did not err in finding that in the absence of any evidence

showing that the Chinese government was targeting Chinese

citizens who converted to Mormonism while abroad, or that

the Chinese government was aware of Liu’s conversion to

Mormonism, Liu did not meet his burden of showing an

objectively reasonable fear of future persecution.     See

Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008)

(“[T]o establish a well-founded fear of persecution in the

absence of any evidence of past persecution, an alien must

make some showing that authorities in his country of

nationality are either aware of his activities or likely to

become aware of his activities.”).   Because this finding is

dispositive of Liu’s claim of a well-founded fear of future

persecution, we need not consider his argument that the IJ

failed to adequately consider the evidence he provided

regarding his conversion to, and practice of, Mormonism in

the United States.*



       *
       Because Liu argues for the first time before this
  Court that there is a pattern or practice in China of
  persecuting practitioners of unauthorized faiths, he has
  not exhausted that argument and we decline to consider it
  in the first instance. See Lin Zhong v. U.S. Dep’t of
  Justice, 480 F.3d 104, 107 n.1, 119-20 (2d Cir. 2007).
                             5
      Because Liu was unable to show the objective likelihood

of persecution needed to make out an asylum claim, and

because his claim for CAT relief rests on the same factual

predicate as his asylum claim, his claims for withholding of

removal and CAT relief also fail.     See Paul v. Gonzales, 444

F.3d 148, 156 (2d Cir. 2006)

II.   BIA’s Standard of Review

      Liu argues that the BIA erred by engaging in improper

de novo review and fact-finding.     In an appeal pending with

the BIA after September 2002, the BIA is expressly

prohibited from engaging in independent fact-finding, see 8

C.F.R. § 1003.1(d)(3)(iv), and may overturn the IJ’s

findings of fact only if “clearly erroneous,” see 8 C.F.R.

§ 1003.1(d)(3)(i).   In contrast to findings of fact, the BIA

reviews “questions of law, discretion, and judgment and all

other issues in appeals from decisions of immigration judges

de novo.”   8 C.F.R. § 1003.1(d)(3)(ii).    Here, the BIA did

not engage in a de novo review to overturn the IJ’s finding

of fact, but rather to determine that Liu’s fear was not

objectively reasonable, and such de novo review was not in

error.   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 162 (2d

Cir. 2008); Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

104, 117 (2d Cir. 2007).

                                 6
    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




                              7
