     14-4639
     Hu v. Lynch
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A200 748 063

                        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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   16th day of March, two thousand sixteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            PIERRE N. LEVAL,
10            ROBERT D. SACK,
11                 Circuit Judges.
12   _____________________________________
13
14   YANGUANG HU,
15            Petitioner,
16
17                 v.                                                14-4639
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Cora J. Chang, New York, New York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Carl
28                                       McIntyre, Assistant Director;
29                                       Robert D. Tennyson, Trial Attorney,
1                                   Office of Immigration Litigation,
2                                   United States Department of Justice,
3                                   Washington, D.C.
4
5           UPON DUE CONSIDERATION of this petition for review of a

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

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

8    DENIED.

9           Petitioner Yanguang Hu, a native and citizen of the

10   People’s Republic of China, seeks review of a November 26, 2014,

11   decision of the BIA, affirming a June 18, 2013, decision of an

12   Immigration Judge (“IJ”) denying Hu’s application for asylum,

13   withholding of removal, and relief under the Convention Against

14   Torture (“CAT”).    In re Yanguang Hu, No. A200 748 063 (B.I.A.

15   Nov. 26, 2014), aff’g No. A200 748 063 (Immig. Ct. N.Y. City

16   June 18, 2013).    We assume the parties’ familiarity with the

17   underlying facts and procedural history in this case.

18          Under the circumstances of this case, we have reviewed the

19   IJ’s decision as modified by the BIA, i.e., minus the bases for

20   denying relief that the BIA did not explicitly consider (the

21   IJ’s    findings   regarding    the   timeliness   of   Hu’s   asylum

22   application and the credibility of his testimony).        See Chuilu

23   Liu v. Holder, 575 F.3d 193, 194, 196 (2d Cir. 2009).      Contrary

24   to the Government’s contention, we have jurisdiction to review
                                       2
1    the agency’s denial of asylum and CAT relief because Hu

2    exhausted his challenge to the agency’s lack of corroboration

3    finding, which was the only basis for denying asylum and CAT

4    relief that the BIA affirmed.      The applicable standards of

5    review are well established.   8 U.S.C. § 1252(b)(4)(B); Chuilu

6    Liu, 575 F.3d at 196.

7        An applicant bears the burden of establishing eligibility

8    for asylum and related relief.     8 U.S.C. § 1158(b)(1)(B)(i);

9    8 C.F.R. § 1208.16(b), (c)(2).     “While consistent, detailed,

10   and credible testimony may be sufficient to carry the alien’s

11   burden, evidence corroborating his story, or an explanation for

12   its absence, may be required where it would reasonably be

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

14   see also 8 U.S.C. § 1158(b)(1)(B)(ii).    Before denying a claim

15   solely based on an applicant’s failure to provide corroborating

16   evidence, the IJ must, either in her decision or otherwise in

17   the record (1) identify the specific evidence missing, and

18   explain why it was reasonably available, (2) provide an

19   opportunity to explain the omission, and (3) assess any

20   explanation given.   Chuilu Liu, 575 F.3d at 198.

21       In this case, it was reasonable for the agency to require

22   evidence corroborating Hu’s claims that he was detained and
                                    3
1    beaten in China for participating in underground Christian

2    church activities, and that he continues to practice his

3    religion in the United States, particularly given that Hu made

4    inconsistent statements regarding the number of times he was

5    beaten and when he began attending church in the United States.

6    See   8 U.S.C.    § 1158(b)(1)(B)(ii)       (“The   testimony   of    the

7    applicant may be sufficient to sustain the applicant’s burden

8    without corroboration, but only if the applicant satisfies the

9    trier of fact that the applicant’s testimony is credible, is

10   persuasive,      and   refers    to   specific   facts   sufficient   to

11   demonstrate that the applicant is a refugee.”); see also Chuilu

12   Liu, 575 F.3d at 196-97.        Moreover, the agency reasonably noted

13   that Hu had not submitted any evidence, such as a letter from

14   his parents, younger brother, or fellow practitioners, to

15   corroborate his claim that he was detained and beaten in China.

16   See Chuilu Liu, 575 F.3d at 198 (providing that “the alien bears

17   the ultimate burden of introducing such evidence without

18   prompting from the IJ.”).             Hu admitted that he could have

19   contacted his family to obtain such evidence.              And, the IJ

20   reasonably rejected Hu’s explanation that he did not contact

21   his fellow practitioners for fear of implicating them in light



                                            4
1    of his testimony that at least ten of his fellow practitioners

2    were arrested with him and thus already implicated.

3        As to his fear of future persecution on account of his

4    continued religious practice, the agency reasonably accorded

5    limited weight to an October 2010 form letter issued by the

6    Church of Grace to Fujianese in New York, stating that Hu had

7    attended services regularly since January of that same year.

8    See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42

9    (2d Cir. 2006).   Hu initially testified inconsistently with the

10   letter regarding when he began attending the church, he did not

11   proffer any witnesses from the church to corroborate his

12   attendance, and he failed to provide any evidence that he had

13   attended church in the United States between the date the letter

14   was issued in October 2010 and his June 2013 hearing.

15       Accordingly, the agency did not err in finding that Hu

16   failed to satisfy his burden of demonstrating past persecution

17   or a well-founded fear of future persecution on account of his

18   religion.    See Chuilu Liu, 575 F.3d at 196-98.   That finding

19   is dispositive of asylum, withholding of removal, and CAT relief

20   because all three claims were based on the same factual

21   predicate.     See 8 C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1),

22   (c)(3); Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
                                     5
1        For the foregoing reasons, the petition for review is

2    DENIED.    As we have completed our review, any stay of removal

3    that the Court previously granted in this petition is VACATED,

4    and any pending motion for a stay of removal in this petition

5    is DISMISSED as moot.    Any pending request for oral argument

6    in this petition is DENIED in accordance with Federal Rule of

7    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

8    34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O=Hagan Wolfe, Clerk




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