    13-3991
    Dorje v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A088 551 844
                           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.

         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
    19th day of January, two thousand sixteen.

    PRESENT:
             DENNIS JACOBS,
             PETER W. HALL,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    TSERING DORJE, AKA TSERING DORJEE,
    AKA LOBSANG TASHI,
              Petitioner,

                      v.                                             13-3991
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Gary J. Yerman, New York, New York.

    FOR RESPONDENT:                     Stuart F. Delery, Assistant Attorney
                                        General; John S. Hogan, Senior
                                        Litigation Counsel; David H.
                                        Wetmore, Trial Attorney, Office of
                             Immigration Litigation, Washington,
                             D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

    Petitioner Tsering Dorje, a native of Tibet and citizen of

China, seeks review of a September 20, 2013, decision of the

BIA affirming a January 10, 2012, decision of an Immigration

Judge     (“IJ”)   denying   Dorje’s   application    for   asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”).    In re Tsering Dorje, No. A088 551 844 (B.I.A.

Sept. 20, 2013), aff’g No. A088 551 844 (Immig. Ct. N.Y. City

Jan. 10, 2012).     We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed the

IJ’s decision as supplemented 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); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

Cir. 2009).

                                 2
       Dorje claims past persecution for the first time before

this    Court.    His   claim   fails   for   two   reasons.   It   is

unexhausted and therefore not subject to review.         See Lin Zhong

v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1, 119-20 (2d Cir.

2007).    And, even if exhausted, Dorje admitted that he was not

home when Chinese authorities allegedly discovered materials

relating to the Dalai Lama, and he suffered no harm other than

fearing arrest.    See Huo Qiang Chen v. Holder, 773 F.3d 396,

406-07 (2d Cir. 2014) (holding that “threats of persecution,

no matter how credible, do not demonstrate past persecution,”

even where a threat causes the alien to flee his home).

       Dorje’s claim that he faces future persecution, based on

Chinese officials’ discovery of his pro-Tibetan materials and

his political activity in the United States, also fails.            To

prevail, Dorje was required to show a reasonable possibility

that authorities in China are either aware of his activities

or are likely to become aware of them.              Hongsheng Leng v.

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

       Here, the IJ properly found that Dorje failed to meet his

burden of proof because he did not corroborate the most basic

elements of his claim: that he distributed materials relating
                                  3
to the Dalai Lama, that Chinese officials discovered those

materials, and that he is involved in pro-Tibetan activities

in the United States.   See 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where

the trier of fact 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.”); Yan

Juan Chen v. Holder, 658 F.3d 246, 251-52 (2d Cir. 2011).      Dorje

submitted no evidence, other than his testimony, that he

possessed the tapes or photographs or that Chinese officials

came to his home in 2004.   The IJ pointed out that Dorje could

have   submitted   statements   from   his   uncle,   who   allegedly

provided him the Dalai Lama materials, and his wife, who (unlike

Dorje) was present during the officials’ alleged visit.          See

id. at 252-53 (explaining that IJ should identify missing

corroborating evidence); Chuilu Liu v. Holder, 575 F.3d 193,

198 (2d Cir. 2009) (explaining that IJ need not identify missing

evidence at hearing, but rather may do so in decision).          The

IJ was not required to credit Dorje’s explanations—his uncle’s

death and wife’s illiteracy—because Dorje’s uncle died almost

two years after Dorje applied for asylum and his wife could have
                                 4
signed a statement that someone transcribed for her.      Yan Juan

Chen, 658 F.3d at 252 (holding that Court defers to IJ’s finding

as to availability of evidence unless reasonable trier of fact

is compelled to conclude it is unavailable).

    Dorje argues that the BIA unreasonably expected him to

produce evidence issued by his persecutor, “such as a police

report, public security notice, or statements of others.”     The

BIA’s suggestion that Dorje could have submitted such evidence

is problematic.    In re S-M-J-, 21 I. & N. Dec. 722, 725 (B.I.A.

1997) (explaining that agency may not unreasonably demand the

applicant   to   “present   evidence   to corroborate   particular

experiences (e.g., corroboration from the persecutor)”).      The

BIA’s suggestion, however, was in addition to its observation

that Dorje failed to submit reasonably available evidence or

any corroboration at all.      Accordingly, the BIA’s mention of

police reports, though problematic, does not warrant a remand

because the fact remains that Dorje did not provide reasonably

available corroborating evidence.       Xiao Ji Chen v. U.S. Dep’t

of Justice, 471 F.3d 315, 338 (2d Cir. 2006) (holding that remand

not required if it would be futile because “we can state with


                                 5
confidence that the same decision would be made if we were to

remand”).

       Similarly, Dorje failed to corroborate the fact of his

political activities in the United States.          He submitted only

a membership card.          The IJ reasonably afforded this card

limited weight because it only showed that Dorje joined an

organization but revealed nothing regarding his purported

participation in rallies in the United States.            Id. at 342

(holding that weight given corroborating evidence lies largely

with discretion of agency).         Dorje had no explanation for his

failure to submit photographs of himself at the rallies, which

he testified to having.          By his own admission, he failed to

present reasonably available evidence, and the IJ properly

found that Dorje failed to meet his burden of proof.           Chuilu

Liu, 575 F.3d at 199.

       Based   on   the   lack   of evidence   of   Dorje’s political

activism, the IJ reasonably concluded that Dorje failed to show

that the Chinese government is aware or likely to become aware

of his pro-Tibetan activities.          Hongsheng Leng, 528 F.3d at

143.     Dorje argues that the background evidence shows the

“repression and persecution levied upon ethnic Tibetan cultural
                                    6
activists in China” and that he “provided the Court with valid

documentation of his membership in that group.”          To the extent

that he raises a pattern or practice claim, it is unpersuasive.

The agency’s determination that Dorje failed to show that the

Chinese government was aware or likely to become aware of his

political activities defeats his eligibility for relief.               Cf.

Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554, 570 (2d Cir. 2006)

(remanding where agency failed to determine whether foreign

government     exhibited   a   pattern   or   practice   and      whether

government officials were likely to become aware of the

petitioner’s     activities).         Given   that   Dorje       did   not

demonstrate his political activism, he has failed to show that

he is “similarly situated to” Tibetan cultural activists as

would     be   required    for    such    a   claim.         8     C.F.R.

§ 1208.13(b)(2)(iii).

    Finally, because Dorje has not met his burden to prove his

eligibility for asylum, he “necessarily fails” to meet his

burden for withholding of removal and CAT relief.                Lecaj v.

Holder, 616 F.3d 111, 119 (2d Cir. 2010).

    For the foregoing reasons, the petition for review is

DENIED.
                                  7
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk




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