Lin v. Sessions ( 2018 )

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
8