     16-3232
     Lin v. Sessions
                                                                                   BIA
                                                                                Hom, IJ
                                                                           A205 429 457
                            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 25th day of May, two thousand eighteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            RICHARD C. WESLEY,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   RUQING LIN,
14                           Petitioner,
15
16                     v.                                        16-3232
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20                 Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                       Troy Nader Moslemi, Flushing, NY.
24
25   FOR RESPONDENT:                       Chad A. Readler, Acting Assistant
26                                         Attorney General; Douglas E.
27                                         Ginsburg, Assistant Director;
1                                  Deitz P. Lefort, Trial Attorney,
2                                  Office of Immigration Litigation,
3                                  United States Department of
4                                  Justice, Washington, DC.
5
6           UPON DUE CONSIDERATION of this petition for review of a

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

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

9    is DISMISSED in part and DENIED in part.

10          Petitioner Ruqing Lin, a native and citizen of the

11   People’s Republic of China, seeks review of an August 25,

12   2016, decision of the BIA affirming a March 16, 2015, decision

13   of an Immigration Judge (“IJ”) denying Lin’s application for

14   asylum,    withholding   of   removal,   and   relief   under   the

15   Convention Against Torture (“CAT”).      In re Ruqing Lin, No. A

16   205 429 457 (B.I.A. Aug. 25, 2016), aff’g No. A 205 429 457

17   (Immig. Ct. N.Y. City Mar. 16, 2015).     We assume the parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

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

21   BIA.    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

22   520, 522 (2d Cir. 2005).      The applicable standards of review


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

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

3           I.   Timeliness of the Asylum Application

4           An   asylum    applicant      must   demonstrate      “by    clear      and

5    convincing       evidence    that    the    application      has   been    filed

6    within 1 year after the date of the alien’s arrival in the

7    United States,” or must demonstrate “either the existence of

8    changed circumstances which materially affect the applicant’s

9    eligibility or extraordinary circumstances relating to the

10   delay in filing an application.”                 8 U.S.C. § 1158(a)(2)(B),

11   (D).     Our jurisdiction to review the agency’s finding that

12   an application was untimely is limited to “constitutional

13   claims      or    questions     of     law.”           Id.   §§    1158(a)(3),

14   1252(a)(2)(D); Joaquin-Porras v. Gonzales, 435 F.3d 172, 177-

15   78 (2d Cir. 2006).

16          We   dismiss    the    petition      as    to   asylum     for   lack    of

17   jurisdiction.         Lin had to prove timeliness by clear and

18   convincing evidence.          8 U.S.C. § 1158(a)(2)(B).                 Her only

19   evidence other than her testimony was a letter from a witness

20   who did not appear and whose reliability was called into

                                            3
1    question because of attorney fraud and documents that were

2    self-created or unsigned.        The IJ has the authority to

3    determine the weight assigned to each piece of evidence, Xiao

4    Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.

5    2006), and Lin does not identify any error of law in the IJ’s

6    conclusions,    but    merely   challenges   the    IJ’s   factual

7    determinations, which we lack jurisdiction to review.         See

8    Joaquin-Porras, 435 F.3d at 180.

9        II. Burden of Proof: Withholding of Removal and CAT

10             Relief

11       An applicant has the burden of proving eligibility for

12   relief.     8   U.S.C.     §§ 1158(b)(1)(B)(i),     1231(b)(3)(C).

13   Although testimony alone may be enough in some circumstances,

14   an IJ “may weigh the credible testimony along with other

15   evidence of record.”     Id. § 1158(b)(1)(B)(ii).    “We generally

16   defer to the agency’s evaluation of the weight to be afforded

17   an applicant’s documentary evidence.”        Y.C. v. Holder, 741

18   F.3d 324, 332 (2d Cir. 2013).        “Where the trier of fact

19   determines that the applicant should provide evidence that

20   corroborates otherwise credible testimony, such evidence must

                                      4
1    be provided unless the applicant does not have the evidence

2    and   cannot   reasonably   obtain   the   evidence.”   8   U.S.C.

3    § 1158(b)(1)(B)(ii); see Chuilu Liu v. Holder, 575 F.3d 193,

4    198 n.5 (2d Cir. 2009) (“[A] failure to corroborate can

5    suffice, without more, to support a finding that an alien has

6    not met [her] burden of proof.”).          We cannot reverse the

7    agency’s corroboration finding unless a reasonable trier of

8    fact would be “compelled to conclude that such corroborating

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

10         We find no error in the agency’s conclusion that Lin did

11   not submit sufficiently reliable documentation to corroborate

12   her abortion claim.    She argues that her credible testimony,

13   her medical booklet, a fine receipt, a letter from her former

14   employer, and the supporting statements from her mother and

15   aunt were sufficient by themselves to sustain her burden.

16   The agency reasonably gave little weight to the medical

17   booklet because it was a self-kept medical record lacking

18   indicia of reliability, such as any certification from a

19   doctor or hospital that the record was accurate.        See Y.C.,

20   741 F.3d at 334.   Additionally, the letters from Lin’s mother

                                     5
1    and aunt were appropriately accorded little evidentiary value

2    because they were unsworn and written by interested witnesses

3    who were unavailable for cross-examination.              Id. (deferring

4    to   agency’s    decision      declining   to   credit    letter   from

5    applicant’s spouse); Matter of H-L-H- & Z-Y-Z-, 25 I. & N.

6    Dec. 209, 214-15 & n.5 (B.I.A. 2010) (according limited weight

7    to unauthenticated documents and to letters from friends and

8    family who are interested witnesses and who are not subject

9    to cross examination), abrogated on other grounds by Hui Lin

10   Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).

11        Similarly, the agency did not err in assigning little

12   weight to a fine receipt, which purportedly reflected a fine

13   for an illegal pregnancy, but did not reference an abortion.

14   Y.C., 741 F.3d at 334.        Nor did the IJ err in affording little

15   evidentiary     weight   to    an   unsigned    and   unsworn   letter,

16   purportedly from Lin’s former employer, informing her of her

17   termination from the company, which also did not refer to an

18   abortion.     Id.; Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec.

19   at 214-15.    Finally, the IJ was permitted to rely on the fact

20   that Lin did not submit an affidavit from her former boyfriend

                                         6
1    or present any evidence of their relationship.          Chuilu Liu,

2    575 F.3d at 198 (“the alien bears the ultimate burden of

3    introducing such evidence without prompting from the IJ.”).

4    Accordingly, the agency reasonably concluded that Lin failed

5    to meet her burden of proof.1      8 U.S.C. § 1158(b)(1)(B)(ii).

6        Lin’s    failure   to   meet   her   burden   of   proving   past

7    persecution is dispositive because her asylum, withholding of

8    removal, and CAT claims all relied on the allegation of past

9    harm.    See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

10   2006).

11       For the foregoing reasons, the petition for review is

12   DISMISSED in part and DENIED in part.        As we have completed

13   our review, any stay of removal that the Court previously

14   granted in this petition is VACATED, and any pending motion

15   for a stay of removal in this petition is DISMISSED as moot.

16   Any pending request for oral argument in this petition is



     1 The BIA did not rely on the IJ’s finding that Lin should
     have attempted to obtain an abortion certificate, so that
     determination is not before us. Xue Hong Yang, 426 F.3d at
     522.   Moreover, as the BIA found, such a certificate may
     actually undermine a claim of a forced abortion. See, e.g.,
     Xiao Xing Ni v. Gonzales, 494 F.3d 260, 263 (2d Cir. 2007).
                                   7
1   DENIED in accordance with Federal Rule of Appellate Procedure

2   34(a)(2), and Second Circuit Local Rule 34.1(b).

3                     FOR THE COURT:
4                     Catherine O’Hagan Wolfe, Clerk of Court




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