         12-2003
         Gao v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A088 336 075
                           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 5th day of March, two thousand fourteen.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                     Chief Judge,
 9                BARRINGTON D. PARKER,
10                REENA RAGGI,
11                     Circuit Judges.
12       _____________________________________
13
14       MING GAO,
15                       Petitioner,
16                                                              12-2003
17                       v.                                     NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                Gabriel S. De La Merced, New York,
25                                      New York.
26
27       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
28                                      Attorney General; Russell J. E.
29                                      Verby, Senior Litigation Counsel;
 1                             Monica Antoun, Trial Attorney,
 2                             Office of Immigration Litigation,
 3                             Civil Division, United States
 4                             Department of Justice, Washington,
 5                             D.C.
 6
 7          UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DENIED.

11          Petitioner, Ming Gao, a native and citizen of the

12   People’s Republic of China, seeks review of an April 18,

13   2012, decision of the BIA affirming the July 29, 2010,

14   decision of Immigration Judge (“IJ”) Alan A. Vomacka, which

15   denied his application for asylum, withholding of removal,

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

17   re Ming Gao, No. A088 336 075 (B.I.A. Apr. 18, 2012) (“BIA

18   Op.”), aff’g No. A088 336 075 (Immig. Ct. N.Y. City July 29,

19   2010) (“IJ Op.”).     We assume the parties’ familiarity with

20   the underlying facts and procedural history of the case.

21          Under the circumstances of this case, we have reviewed

22   the decision of the IJ as modified and supplemented by the

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

24   2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

25   522 (2d Cir. 2005).     The applicable standards of review are


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

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

 3   does not challenge the agency’s denial of CAT relief, we

 4   have reviewed only the denial of asylum and withholding of

 5   removal.

 6       Gao argues that the agency erred by finding that he

 7   failed to demonstrate that he suffered past persecution and

 8   that he has a well-founded fear of future persecution based

 9   on his practice of Falun Gong.    Although “credible testimony

10   alone may be enough to carry the alien’s burden of proof,”

11   an IJ may “require that credible testimony of the alien be

12   corroborated in circumstances in which one would expect

13   corroborating evidence to be available and presented in the

14   immigration hearing.”   Chuilu Liu v. Holder, 575 F.3d 193,

15   196-97 (2d Cir. 2009) (internal quotation marks and

16   alteration omitted); see id. at 199 (holding that alien

17   bears “ultimate burden of introducing such evidence without

18   prompting from the IJ” or of “explain[ing] the absence of

19   such corroborating evidence”); see also 8 U.S.C.

20   § 1158(b)(1)(B)(ii) (“Where the trier of fact determines

21   that the applicant should provide evidence that corroborates

22   otherwise credible testimony, such evidence must be provided

23   unless the applicant does not have the evidence and cannot

24   reasonably obtain the evidence.”).

                                   3
 1       Here, the BIA declined to analyze the IJ’s overall

 2   assessment of Gao’s credibility, instead agreeing with the

 3   IJ that Gao failed to provide reasonably available evidence

 4   to corroborate his claims of past persecution and feared

 5   future persecution in China on account of his practice of

 6   Falun Gong.   Indeed, the IJ labeled the absence of

 7   corroborating evidence “the greatest weakness in [Gao]’s

 8   presentation of his case.”   IJ Op. 14, C.A.R. 57.    “In this

 9   posture, we may not rest our holding on the IJ's credibility

10   findings,” if any, “because the BIA did not affirm and adopt

11   those findings.”   Yan Chen v. Gonzales, 417 F.3d at 271.

12   Rather, we assume Gao’s “credibility as to his testimony

13   concerning the events of his past and as to his subjective

14   fear of future persecution,” id. at 271-72, and evaluate

15   only the BIA’s determination regarding corroboration, which

16   “we review with substantial deference,” Chiulu Liu v.

17   Holder, 575 F.3d at 197-98 (citing 8 U.S.C. § 1252(b)(4)

18   (prohibiting reviewing court from “revers[ing] a

19   determination made by a trier of fact with respect to the

20   availability of corroborating evidence” unless “reasonable

21   trier of fact [would be] compelled to conclude that such

22   corroborating evidence is unavailable”)).

23

                                   4
 1       On an independent review of the record, we hold that a

 2   reasonable factfinder under the circumstances could conclude

 3   that evidence corroborating the claimed persecution, missing

 4   from the record, was reasonably available to Gao.

 5   Specifically, the BIA noted that Gao’s roommate, who

 6   purportedly knew of Gao’s Falun Gong activities, did not

 7   appear to testify at the hearing before the IJ.     The IJ

 8   expressly found Gao’s explanation for this omission, i.e.,

 9   that the roommate worked for long stretches away from home,

10   to be unsatisfactory.   The BIA also observed, as did the IJ,

11   that Gao presented no statements or testimony as to his

12   involvement in Falun Gong in the United States from

13   individuals based in New York with whom he traveled to

14   Washington, D.C., to protest Chinese treatment of Falun Gong

15   practitioners.1   To the extent Gao did furnish supporting

16   statements from his brother and sister, along with

17   unidentified persons residing in China, the BIA reasonably

18   concluded that the IJ was entitled to afford those hearsay


            1
             Gao claimed before the IJ that only one of these
       acquaintances could possibly have testified on his
       behalf, because only that person knew him well at the
       time of the D.C. trip, see Tr. 72, C.A.R. 143, but that
       the person was afraid to testify because he or she lacked
       lawful immigration status. This does not explain,
       however, why none of Gao’s fellow practitioners in New
       York could testify about his activities since then.
                                   5
 1   statements minimal weight, as they simply tracked Gao’s own

 2   account and lacked the proper foundation in any event.      See

 3   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d

 4   Cir. 2006) (holding that weight to be afforded applicant’s
 5   evidence in immigration proceedings lies largely within

 6   agency’s discretion).

 7       Insofar as the BIA’s decision may be read to fault Gao

 8   for not providing in-person testimony from each of his

 9   brother and a fellow practitioner of Falun Gong, because

10   those individuals allegedly lacked lawful immigration

11   status, the BIA may have erred.    See Yan Juan Chen v.

12   Holder, 658 F.3d 246, 253 (2d Cir. 2011) (observing, though

13   not deciding, that it may be inappropriate to fault

14   applicant for failing to present corroborating witness who

15   is “unrelated to her and [who] ha[s] no incentive to appear

16   on her behalf that would counterbalance [witness’s] fear of

17   being apprehended”).    But see BIA Op. 2 (affirming IJ’s

18   finding that Gao “failed to show that he could not have

19   reasonably obtained in-person testimony from at least some

20   of” persons identified by BIA (emphasis added)).

21   Nevertheless, substantial evidence supports the BIA’s

22   corroboration finding irrespective of these persons’

23   potential testimony.    See Alam v. Gonzales, 438 F.3d 184,

                                    6
1   187-88 (2d Cir. 2006) (noting that legal error does not

2   warrant remand if there is no realistic possibility that,

3   absent error, IJ or BIA would have reached different

4   conclusion).

5       For the foregoing reasons, the petition for review is

6   DENIED.

7                          FOR THE COURT:
8                          Catherine O’Hagan Wolfe, Clerk
9




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