     17-3048
     Wang v. Sessions
                                                                                   BIA
                                                                             Laforest, IJ
                                                                           A206 091 118
                             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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 31st day of July, two thousand eighteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            BARRINGTON D. PARKER,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   XICAI WANG,
14                            Petitioner,
15
16                      v.                                       17-3048
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20                 Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                        Lee Ratner, Law Office of John S.
24                                          Yong, New York, NY.
25
26   FOR RESPONDENT:                        Chad A. Readler, Acting Assistant
27                                          Attorney General; Anthony P.
28                                          Nicastro, Assistant Director;
29                                          Sherease Pratt, Senior Litigation
30                                          Counsel, Office of Immigration
31                                          Litigation, United States
32                                          Department of Justice, Washington,
33                                          DC.
1          UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5          Petitioner Xicai Wang, a native and citizen of the

6    People’s Republic of China, seeks review of a September 8,

7    2017, decision of the BIA affirming a February 7, 2017,

8    decision   of    an   Immigration   Judge      (“IJ”)    denying   Wang’s

9    application for asylum, withholding of removal, and relief

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

11   Wang, No. A 206 091 118 (B.I.A. Sept. 8, 2017), aff’g No. A

12   206 091 118 (Immig. Ct. N.Y. City Feb. 7, 2017).                We assume

13   the   parties’    familiarity    with    the    underlying      facts   and

14   procedural history in this case.

15         Under the circumstances of this case, we have reviewed

16   the IJ’s decision as supplemented by the BIA.             Gertsenshteyn

17   v. U.S. Dep’t of Justice, 544 F.3d 137, 142 (2d Cir. 2008).

18   We review the agency’s corroboration decision for substantial

19   evidence   and    the   BIA’s   denial    of    remand    for   abuse   of

20   discretion.      8 U.S.C. § 1252(b)(4); Kyaw Zwar Tun v. U.S.

21   INS, 445 F.3d 554, 563 (2d Cir. 2006) (applying substantial
                                  2
1    evidence standard to corroboration finding); Li Yong Cao v.

2    U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir. 2005)

3    (reviewing BIA’s denial of remand under abuse of discretion

4    standard).

5        I.    Corroboration

6        Under the REAL ID Act, an IJ may require an asylum

7    applicant to provide evidence that corroborates otherwise

8    credible testimony in order to meet the applicant’s burden

9    of proof for asylum.   8 U.S.C. § 1158(b)(1)(B)(ii).   “[A]

10   failure to corroborate can suffice, without more, to

11   support a finding that an alien has not met his burden of

12   proof.”   Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5 (2d

13   Cir. 2009); see also Matter of L-A-C-, 26 I. & N. Dec. 516,

14   519 (B.I.A. 2015) (holding that “regardless of whether an

15   applicant is deemed credible, he has the burden to

16   corroborate the material elements of the claim where the

17   evidence is reasonably obtainable”).   When an IJ determines

18   that corroborating evidence is necessary, the applicant

19   must provide the evidence “unless the applicant does not

20   have the evidence and cannot reasonably obtain the

21   evidence.”   8 U.S.C. § 1158(b)(1)(B)(ii).   But the agency
                                   3
1    must identify what evidence should have been provided and

2    assess any explanation for the missing evidence.    Chuilu

3    Liu, 575 F.3d at 198-99.   We will reverse the agency’s

4    decision only if “a reasonable trier of fact is compelled

5    to conclude that such corroborating evidence is

6    unavailable.”   8 U.S.C. § 1252(b)(4).

7        Contrary to Wang’s position, the agency had the

8    discretion to discount his mother’s letter because she was

9    an interested witness who was not available for cross

10   examination.    See Y.C. v. Holder, 741 F.3d 325, 334 (2d

11   Cir. 2013) (deferring to agency’s decision to give limited

12   weight to letter from applicant’s spouse in China).   And

13   aside from this letter, Wang did not provide any evidence

14   to corroborate events in China.    The IJ identified the

15   missing evidence: medical records documenting the treatment

16   Wang received for injuries sustained during his detention;

17   documentation of his employment and termination (he claimed

18   he was fired from his construction job after his

19   detention); and a letter from the friend who introduced him

20   to the underground Catholic church, or other evidence of

21   his church attendance in China.    The transcript reflects
                                    4
1    that Wang was questioned about the absence of this evidence

2    at the hearing.

3           Wang argues that he sufficiently explained that the

4    evidence was unavailable.        He testified that he lost the

5    documentation of his employment and did not receive any

6    written notice of his termination; he did not have medical

7    records because he was treated at a small private clinic that

8    did not keep any records; and he was not able to obtain a

9    letter from the friend who introduced him to the underground

10   church because this friend had fled China and Wang did not

11   know where he was.     The record reflects that the BIA and IJ

12   considered    and   rejected   these   explanations.    And   Wang’s

13   explanations do not compel a finding that the evidence was

14   unavailable, especially because Wang and his mother did not

15   describe any attempts to obtain the requested evidence.           8

16   U.S.C. § 1252(b)(4).

17          The burden of proof determination is dispositive of

18   asylum, withholding of removal and CAT relief.         See Lecaj v.

19   Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).1


     1   Wang does not challenge the denial of relief based on his

                                       5
1          II.   Remand

2          On appeal to the BIA, Wang submitted a short letter from

3    his Catholic church in China stating that he was a member of

4    the   church,   as   well   as   a   letter   from   a   church   friend

5    describing Wang’s participation in the church and his arrest

6    and detention.       The BIA did not abuse its discretion in

7    declining to remand.

8          A motion to remand based on new evidence is subject to

9    the same rules as a motion to reopen, and thus a movant’s

10   failure to proffer previously unavailable evidence is a

11   permissible ground for denying remand.          8 C.F.R.

12   § 1003.2(c)(1) (requiring evidence that is new and

13   previously unavailable); Li Yong Cao, 421 F.3d at 156.

14   Wang’s friend explained in his letter that he had been

15   living in hiding and was not in touch with Wang at the time

16   of the hearing, but had recently moved back to his hometown

17   and resumed contact with Wang.         The BIA was not required to

18   credit the explanation given the suspicious timing and the


     practice of Catholicism in the United States. See Yueqing
     Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005)
     (providing that issues not raised in an opening brief are
     waived).
                                   6
1    lack of detail about why Wang’s friend returned to his

2    hometown after spending years in hiding and how Wang and

3    his friend got back in touch with one another.    See 8

4    U.S.C. § 1252(b)(4); cf. Majidi v. Gonzales, 430 F.3d 77,

5    80-81 (2d Cir. 2005) (holding that in credibility context,

6    applicant’s explanations for inconsistent statements must

7    be compelling rather than merely plausible).   The BIA also

8    reasonably found that because the church had more than 20

9    members and Wang did not explain why he could not obtain a

10   letter from anyone else at the church, he did not establish

11   that the information conveyed in the letters was previously

12   unavailable.

13       For the foregoing reasons, the petition for review is

14   DENIED.   As we have completed our review, Wang’s pending

15   motion for a stay of removal is DENIED as moot.   Any pending

16   request for oral argument in this petition is DENIED in

17   accordance with Federal Rule of Appellate Procedure 34(a)(2),

18   and Second Circuit Local Rule 34.1(b).

19                               FOR THE COURT:
20                               Catherine O’Hagan Wolfe,
21                               Clerk of Court


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