     16-3124
     Chen v. Sessions
                                                                                 BIA
                                                                              Hom, IJ
                                                                         A200 919 329
                             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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 5th day of October, two thousand eighteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            ROSEMARY S. POOLER,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   XIAN YING CHEN,
14          Petitioner,
15
16                      v.                                     16-3124
17                                                             NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20         Respondent.
21   ____________________________________
22
23   FOR PETITIONER:                    G. Victoria Calle, Calle &
24                                      Associates, New York, NY.
25
26   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
27                                      Attorney General; Cindy S.
28                                      Ferrier, Assistant Director; Matt
29                                      A. Crapo, Attorney, Office of
30                                      Immigration Litigation, United
31                                      States Department of Justice,
32                                      Washington, DC.
33
 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 Xian Ying Chen, a native and citizen of the

 6   People’s Republic of China, seeks review of an August 12,

 7   2016,   decision     of   the   BIA   affirming     an     August   5,    2015,

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

 9   application for asylum, withholding of removal, and relief

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

11   Ying Chen, No. A200 919 329 (B.I.A. Aug. 12, 2016), aff’g

12   No. A200 919 329      (Immig. Ct. N.Y. City Aug. 5, 2015).                   We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       We have reviewed the IJ’s decision as modified by the

16   BIA and thus reach only the agency’s ruling that Chen failed

17   to meet her burden of proof.                See Xue Hong Yang v. U.S.

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

19   applicable standards of review are well established.                        See

20   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

21   510, 513 (2d Cir. 2009).

22       An asylum applicant has the burden of proving

23   eligibility for relief.         8 U.S.C. § 1158(b)(1)(B)(i).             While
                                           2
 1   an applicant can meet her burden of proof by credible

 2   testimony alone in some circumstances, an IJ “may weigh the

 3   credible testimony along with other evidence of record.”

 4   Id. § 1158(b)(1)(B)(ii).      “Where the trier of fact

 5   determines that the applicant should provide evidence that

 6   corroborates otherwise credible testimony, such evidence

 7   must be provided unless the applicant does not have the

 8   evidence and cannot reasonably obtain the evidence.”            Id.;

 9   see Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5 (2d Cir.

10   2009) (“[A] failure to corroborate can suffice, without

11   more, to support a finding that an alien has not met [her]

12   burden of proof.”).      We cannot reverse the agency’s

13   corroboration finding unless a reasonable trier of fact

14   would be “compelled to conclude that such corroborating

15   evidence is unavailable.”      8 U.S.C. § 1252(b)(4).

16       Chen admitted that she had no documentary evidence to

17   support her claim and that she did not try to obtain any

18   such evidence.      The agency reasonably concluded that Chen

19   failed to show that the evidence was unavailable because

20   Chen conceded that she made no attempt to obtain any medical

21   records.      See    8    U.S.C.       §§   1158(b)(1)(B)(i),    (ii),

22   1252(b)(4).

23
                                        3
 1         Chen speculates that records may not exist, asserting

 2   that no court or government report has ever noted the

 3   existence of documentary proof of a forced abortion under

 4   China’s family planning policy.              Her conjecture does not and

 5   would not compel a reasonable trier of fact to conclude that

 6   no medical evidence is available.                See 8 U.S.C.

 7   § 1252(b)(4).      Nor does it explain why she failed to produce

 8   records to support the other facets of her claim such as the

 9   IUD requirement or routine IUD and pregnancy checks.

10         Chen nevertheless argues that the supporting statement

11   from her mother was sufficient to sustain her corroborate

12   her testimony.          The agency reasonably gave little weight to

13   Chen’s      mother’s     letter   given      that      it   was   “unsworn     and

14   submitted by an interested witness.”                    Y.C. v. Holder, 741

15   F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s weighing

16   of letter from family member in China).

17         Chen’s failure to meet her burden of proof as to her

18   allegation of past persecution is dispositive of her claims

19   for asylum, withholding of removal, and CAT relief because

20   all three claims relied solely on that allegation.                      See Paul

21   v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

22   For   the    foregoing      reasons,       the    petition    for   review     is

23   DENIED.       As   we    have   completed        our   review,    any   stay   of
                                            4
 1   removal that the Court previously granted in this petition

 2   is VACATED, and any pending motion for a stay of removal in

 3   this petition is DISMISSED as moot.    Any pending request for

 4   oral argument in this petition is DENIED in accordance with

 5   Federal Rule of Appellate Procedure 34(a)(2), and Second

 6   Circuit Local Rule 34.1(b).

 7                                 FOR THE COURT:
 8                                 Catherine O’Hagan Wolfe, Clerk
 9
10




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