    12-2250
    Chang v. Holder
                                                                                  BIA
                                                                               Lamb, IJ
                                                                          A094 926 276
                       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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 8th day of April, two thousand fourteen.

    PRESENT:
             ROSEMARY S. POOLER,
             RICHARD C. WESLEY,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    JIAN CHANG, AKA JIAN LIN-YANG,
             Petitioner,

                      v.                                   12-2250
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Gerald Karikari, New York, New York.

    FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
                                  Attorney General; Luis E. Perez,
                                  Senior Litigation Counsel; Regina
                                  Byrd, Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
       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.

       Jian Chang, a native and citizen of the People’s

Republic of China, seeks review of a May 11, 2012, decision

of the BIA affirming the May 14, 2010, decision of

Immigration Judge (“IJ”) Elizabeth A. Lamb, denying his

application for asylum, withholding of removal, and relief

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

Chang, No. A094 926 276 (B.I.A. May 11, 2012), aff’g No.

A094 926 276 (Immig. Ct. N.Y. City May 14, 2010).     We assume

the parties’ familiarity with the underlying facts and

procedural history in this case.

       We 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); see also Xue Hong Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).       The

applicable standards of review are well established.       See

8 U.S.C. § 1252(b)(4)(B); see also Yan Chen, 417 F.3d at

271.




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I.   Claims Based on Activities in China

     Chang has abandoned his claim that he suffered past

persecution, arguing only that the agency erred in finding

that he failed to establish a well-founded fear of

persecution on account of his distribution of Falun Gong

flyers in China.   The agency did not err in finding Chang’s

testimony in this regard implausible such that he was

required to provide reasonably available, credible

corroborating evidence.   See Chuilu Liu v. Holder, 575 F.3d

193, 196-97 (2d Cir. 2009).   “The point at which a finding

that testimony is implausible ceases to be sustainable as

reasonable and, instead, is justifiably labeled

“speculation,” in the absence of an IJ's adequate

explanation, cannot be located with precision.”     Ming Xia

Chen v. BIA, 435 F.3d 141, 145 (2d Cir. 2006).     However,

while “bald” speculation is an impermissible basis for

finding testimony implausible, “speculation that inheres in

inference is not ‘bald’ if the inference is made available

to the factfinder by record facts, or even a single fact,

viewed in the light of common sense and ordinary

experience.”   Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d

Cir. 2007).



                              3
    The agency’s finding that it was implausible that

police were able to quickly identify Chang and locate his

house was reasonably based on record facts viewed in light

of common sense, namely Chang’s testimony that: (1) the

policemen from whom he ran did not know him, did not

question him, and did not even ask his name; (2) he was

distributing flyers onto bicycles outside a supermarket

alone; and (3) he did not speak to or recognize anyone at

the supermarket at which he only sometimes shopped.     See id.

Furthermore, Chang has not identified any record evidence

“from which a firm conviction of error could properly be

derived,” Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir.

2007); see also Siewe, 480 F.3d at 168 (noting that “record

support for a contrary inference—even one more plausible or

more natural—does not suggest error”). Contrary to Chang’s

argument, the agency was not compelled to credit Chang’s

explanation that some unidentified person may have reported

him, see Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.

2005) (finding that an agency need not credit an applicant’s

explanations unless those explanations would compel a

reasonable fact-finder to do so).

    As the agency did not err in finding Chang’s account of

events in China implausible, the BIA did not err in

                             4
concluding that reasonably available corroborating evidence

was required to satisfy his burden of proof that he had a

well-founded fear of persecution.   See 8 U.S.C.

§ 1158(b)(1)(B)(i); see also Chuilu Liu, 575 F.3d at 196-97.

Indeed, “[w]hile consistent, detailed, and credible

testimony may be sufficient to carry the alien’s burden,

evidence corroborating his story, or an explanation for its

absence, may be required where it would reasonably be

expected.”   Diallo v. INS, 232 F.3d 279, 285 (2d Cir. 2000).

Even if we assume arguendo that the IJ erred in finding that

there was reasonably available medical evidence of injuries

his father suffered, there is no error in the agency’s (1)

decision not to credit unsworn letters from Chang’s father

and friend, or (2) in its finding that sworn letters, or

other evidence of his father’s detention, beating, or

resulting injuries were reasonably available because Chang

was in communication with his father.   See Xiao Ji Chen v.

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

(noting that the weight afforded to the applicant’s evidence

lies largely within the discretion of the agency); In re H-

L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (finding

that unsworn letters from the alien’s friends and family

were insufficient to provide substantial support for the

                              5
alien’s claims because they were interested witnesses not

subject to cross-examination (citations omitted)), overruled

on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130,

133-38 (2d Cir. 2012).

    Accordingly, because a reasonable fact-finder would not

be compelled to reach the conclusion that Chang satisfied

his burden of proving that he had a well-founded fear of

persecution on account of his distribution of Falun Gong

flyers in China, substantial evidence supports the agency’s

decision to this extent.     See 8 U.S.C. § 1252(b)(4)(B); Yan

Chen, 417 F.3d at 271.     Therefore, the agency did not err in

denying asylum, withholding of removal, and CAT relief

insofar as those claims were based on Chang’s claimed fear

of persecution for his activities in China.     See Paul v.

Gonzales, 444 F.3d 148, 155-57 (2d Cir. 2006).

II. Claims Based on Activities in the United States

    The agency did not err in concluding that Chang failed

to demonstrate a well-founded fear of persecution on account

of his practice of Falun Gong in the United States because

he did not assert that authorities in China were aware of

his practice, and his conclusory assertion that they would

like become aware of his practice was insufficient to

satisfy his burden absent any supporting country conditions

                                6
evidence.     See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143

(2d Cir. 2008).    Therefore, the agency reasonably denied

Chang asylum, withholding of removal, and CAT relief insofar

as those claims were based on his activities in the United

States.     See Paul, 444 F.3d at 156-57.

    We do not consider Chang’s assertion that he has a

well-founded fear of persecution as there is a pattern and

practice of persecution of Falun Gong practitioners in China

because he did not exhaust that argument before the agency.

See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124

(2d Cir. 2007) (concluding that exhaustion of administrative

remedies is a predicate of this Court’s subject matter

jurisdiction, while the failure to exhaust specific issues

is an affirmative defense subject to waiver).

    For the foregoing reasons, the petition for review is

DENIED.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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