Song Xian Dai v. Holder , 565 F. App'x 56 ( 2014 )

13-173
Dai v. Holder
BIA
Cheng, IJ
A087 638 610
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 12th day of May, two thousand fourteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 SONG XIAN DAI,
14 Petitioner,
15
16 v. 13-173
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jeffrey Lubin, Flushing, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Ernesto H. Molina, Jr.,
27 Assistant Director; Tracey N.
28 McDonald, Trial Attorney, Office of
29 Immigration Litigation, United
30 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
4 is DENIED.
5 Petitioner Song Xian Dai, a native and citizen of
6 China, seeks review of a December 21, 2012, order of the
7 BIA, affirming without opinion the September 27, 2010,
8 decision of an Immigration Judge (“IJ”), which pretermitted
9 his application for asylum and denied his application for
10 withholding of removal and relief under the Convention
11 Against Torture (“CAT”). In re Song Xian Dai, No. A087 638
12 610 (B.I.A. Dec. 21, 2012), aff’g No. A087 638 610 (Immig.
13 Ct. New York City Sept. 27, 2010). We assume the parties’
14 familiarity with the underlying facts and procedural history
15 in this case.
16 Under the circumstances of this case, the Court should
17 review the IJ’s decision as the final agency determination.
18 See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).
19 The applicable standards of review are well established.
20 See 8 U.S.C. § 1252(b)(4)(B); Yan Chen v. Gonzales, 417 F.3d
21 268, 271 (2d Cir. 2005).
22 Under 8 U.S.C. § 1252(d)(1), we “may review a final
23 order of removal only if . . . the alien has exhausted all
2
1 administrative remedies available to the alien as of right.”
2 On appeal to the BIA, the alien must raise each category of
3 relief subsequently raised in this Court. See Karaj v.
4 Gonzales, 462 F.3d 113, 119 (2d Cir. 2006). In this case,
5 Dai, pro se, filed a Notice of Appeal to the BIA stating,
6 “The IJ failed to address whether the activities would
7 render a risk that my life or freedom would be threatened if
8 returned to China.” Because we construe pro se submissions
9 generously, we find Dai sufficiently challenged the denial
10 of withholding of removal and CAT relief to invoke our
11 jurisdiction. See Estelle v. Gamble, 429 U.S. 97, 106
12 (1976); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
13 474-75 (2d Cir. 2006); Theodoropoulos v. I.N.S., 358 F.3d
14 162, 171 (2d Cir. 2004) (“at least one of the purposes
15 served by the exhaustion requirement contained in § 1252(d)
16 is to ensure that the INS, as the agency responsible for
17 construing and applying the immigration laws and
18 implementing regulations, has had a full opportunity to
19 consider a petitioner’s claims before they are submitted for
20 review by a federal court.”).
21 Withholding of removal under 8 U.S.C. § 1231(b)(3) is a
22 mandatory form of relief that requires the applicant to show
3
1 that it is more likely than not that his “life or freedom
2 would be threatened in [that] country because of [his] race,
3 religion, nationality, membership in a particular social
4 group, or political opinion.” 8 C.F.R. § 1208.16(b)(1);
5 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
6 Because Dai filed his application in 2009, it is subject to
7 the provisions of the REAL ID Act, which states, among other
8 things, that, “Where the trier of fact determines that the
9 applicant should provide evidence that corroborates
10 otherwise credible testimony, such evidence must be provided
11 unless the applicant does not have the evidence and cannot
12 reasonably obtain the evidence.” See 8 U.S.C. §
13 1158(b)(1)(B)(ii); see also Yan Juan Chen v. Holder, 658
14 F.3d 246, 252 (2d Cir. 2011); Chuilu Liu v. Holder, 575 F.3d
15 193, 198 (2d Cir. 2009).
16 Here, Dai offered no evidence that the authorities were
17 actually aware of his participation in Falun Gong, nor any
18 evidence that they were likely to discover it. See
19 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008);
20 see also Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.
21 2005). Furthermore, the IJ reasonably found that Dai had
22 failed to corroborate his claim; he did not make his wife
4
1 available to testify, nor did he offer an affidavit from
2 her, even though she also claims to practice Falun Gong and
3 was applying for immigration benefits on that basis as well.
4 Dai’s explanation that she was at home taking care of his
5 niece’s children did not explain why she had not submitted
6 even a statement on his behalf. Chuilu Liu, 575 F.3d at
7 198. Dai also did not make his Falun Gong teacher
8 available, and indeed, had not even asked her to testify or
9 submit a statement. Dai’s wife and Falun Gong teacher were
10 reasonably available and their absence was notable. See Yan
11 Juan Chen, 658 F.3d at 252 (permitting the IJ to require
12 “reasonably available corroborating evidence” to support the
13 application).
14 While Dai offered his niece to testify that he
15 practiced Falun Gong, she was unable to confidently identify
16 Dai’s activities as Falun Gong. The IJ reasonably gave her
17 testimony diminished weight. See Xiao Ji Chen v. U.S. Dep’t
18 of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that
19 the weight afforded to an applicant’s evidence in
20 immigration proceedings “lies largely within the discretion”
21 of the agency. Thus, the agency reasonably concluded that
22 Dai failed to meet his burden of proof to demonstrate that
23 it was more likely than not that he would be persecuted on
5
1 account of his Falun Gong activities. 8 U.S.C.
2 § 1231(b)(3); Chuilu Liu, 575 F.3d at 198. As his CAT claim
3 was based on the same factual predicate, its denial was also
4 reasonable. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432
5 F.3d 156, 160-61 (2d Cir. 2005).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
6