Qi Ming Li v. Holder , 407 F. App'x 538 ( 2011 )

10-126-ag
Li v. Holder
BIA
Sichel, IJ
A094 787 512
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of New
4 York, on the 25 th day of January, two thousand eleven.
5
6 PRESENT:
7 JON O. NEWMAN,
8 REENA RAGGI,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 QI MING LI,
14 Petitioner,
15
16 v. 10-126-ag
17 NAC
18
19 ERIC H. HOLDER, JR., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General;
27 Terri J. Scadron, Assistant Director;
28 Manuel A. Palau, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
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 is
4 DENIED.
5 Qi Ming Li, a native and citizen of the People’s Republic
6 of China, seeks review of a December 22, 2009, order of the
7 BIA affirming the February 5, 2008, decision of Immigration
8 Judge (“IJ”) Helen Sichel, which denied his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Qi Ming Li, No.
11 A094 787 512 (B.I.A. Dec. 22, 2009), aff’g No. A094 787 512
12 (Immig. Ct. N.Y. City Feb. 5, 2008). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Li challenges the agency’s denial of his application for
16 asylum, withholding of removal, and CAT relief. Under the
17 circumstances of this case, we review the IJ’s decision as
18 supplemented and modified by the BIA’s decision. See Xue Hong
19 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
20 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
21 The applicable standards of review are well-established. See
22 8 U.S.C. § 1252(b)(4); see also Manzur v. U.S. Dep’t of
2
1 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
2 I. Past Persecution
3 We find no error in the agency’s determination that the
4 harm Li allegedly suffered in China was not sufficiently
5 severe to rise to the level of persecution. See Ivanishvili
6 v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)
7 (“[P]ersecution does not encompass mere harassment” ); cf. Baba
8 v. Holder, 569 F.3d 79, 81 (2d Cir. 2009) (“Daily beatings, a
9 near-starvation diet, and a death threat, administered by the
10 national police during a week-long detention in harsh prison
11 conditions . . . satisfy the standard for persecution . . .
12 .”).
13 II. Well-Founded Fear of Persecution
14 We also find no error in the agency’s determination that
15 Li failed to establish a well-founded fear of future
16 persecution given his failure to provide reasonably available
17 corroboration. “In determining whether the applicant has met
18 [his] burden, the [agency] may weigh the credible testimony
19 along with other evidence of record,” and where the agency
20 “determines that the applicant should provide evidence that
21 corroborates otherwise credible testimony, such evidence must
22 be provided unless the applicant does not have the evidence
3
1 and cannot reasonably obtain the evidence.” 8 U.S.C.
2 § 1158(b)(1)(B)(ii). Here, the BIA pointed out that the
3 letter Li’s parents provided failed to mention his alleged
4 detention in 2004 or that police sought to arrest him in 2005,
5 despite his testimony that they had knowledge of both of these
6 events. Moreover, the agency found that Li failed to provide
7 an affidavit from the friend he allegedly visited after his
8 encounter with Chinese officials, despite the fact that the
9 friend now lives in Canada and Li remains in contact with this
10 person. Thus, the agency did not err in finding that Li
11 failed to provide adequate and reasonably available
12 corroboration for his claimed fear of future persecution. See
13 id.
14 Additionally, we are unpersuaded by Li’s assertion that,
15 under the REAL ID Act, the IJ erred in failing to afford him
16 notice of the corroboration she found lacking and an
17 opportunity to remedy this evidentiary shortcoming. We have
18 held that the IJ’s designation of missing corroboration need
19 not be done prior to the disposition of an alien’s claim. See
20 Chuilu Liu v. Holder, 575 F.3d 193, 198-99 (2d Cir. 2009) .
21 Although the Court in Chuilu Liu limited its holding to pre-
22 REAL ID Act cases, Li points to no language in the REAL ID Act
4
1 providing for the notice requirement he urges. Moreover, such
2 a requirement would contradict the immigration court’s rule
3 that all supporting evidence be filed in advance of the merits
4 hearing and would require the IJ to conduct two merits
5 hearings in many cases, causing considerable delay.
6 Furthermore, contrary to Li’s argument, the agency
7 specifically considered his fear of future persecution based
8 on his testimony that he will join an underground church upon
9 return to China and inevitably be arrested for proselytizing
10 to others, and reasonably determined that Li’s fear was too
11 speculative to be objectively reasonable. See Jian Xing Huang
12 v. U.S. INS, 421 F.3d 125, 128-29 (2d Cir. 2005).
13 Finally, because Li was unable to show the objective
14 likelihood of persecution needed to make out an asylum claim,
15 and because his claims for withholding of removal and CAT
16 relief were based on the same factual predicate as his asylum
17 claim, he was necessarily unable to meet the higher standard
18 required to succeed on a claim for withholding of removal or
19 CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
20 2006); Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991); see
21 also Yang, 426 F.3d at 523.
22 For the foregoing reasons, the petition for review is
23 DENIED. As we have completed our review, any stay of removal
5
1 that the Court previously granted in this petition is VACATED,
2 and any pending motion for a stay of removal in this petition
3 is DISMISSED as moot. Any pending request for oral argument in
4 this petition is DENIED in accordance with Federal Rule of
5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
6 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
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