637 F. App'x 631
2d Cir.2016Background
- Dorje, a Tibetan native of China, seeks asylum, withholding of removal, and CAT relief in the United States.
- IJ denied Dorje’s application on January 10, 2012; BIA affirmed on September 20, 2013.
- Petition for review of the BIA decision is filed in the Second Circuit; standard of review explained.
- Dorje argued past persecution and future threats based on pro-Tibetan activities and Dalai Lama materials.
- The court assumes familiarity with the factual history and focuses on legal standards and evidence sufficiency.
- Court finds Dorje’s past-persecution claim unexhausted and, even if exhausted, not supported by evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the past-persecution claim is reviewable. | Dorje contends past persecution supports relief. | Government notes unexhausted claim bars review. | Unreviewable due to non-exhaustion. |
| Whether Dorje established a future-persecution risk based on Chinese officials' awareness. | Dorje argues likely Chinese awareness due to Dalai Lama materials and activities. | DH argues lack of corroboration defeats likelihood of awareness. | Failed; no corroboration of basic facts; no reasonable probability of awareness established. |
| Whether the record supports the burden of corroboration for persecution claims. | Dorje provided limited documentary evidence beyond testimony. | Applicant must corroborate credible testimony; available evidence was lacking. | IJ properly found lack of corroboration; remand unnecessary. |
| Whether Dorje showed a pattern or practice of persecution against Tibetan activists. | Background evidence indicates repression of Tibetan cultural activists. | Evidence insufficient to show government pattern or likely awareness of Dorje’s activities. | Unpersuasive; no showing that Chinese authorities were aware or likely to become aware. |
Key Cases Cited
- Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 (2d Cir. 2007) (exhaustion requirement governs review of past persecution)
- Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) (providers framework for reviewing IJ/BIA findings under 8 U.S.C. § 1252)
- Yan Juan Chen v. Holder, 658 F.3d 246 (2d Cir. 2011) (corroboration requirement and evidentiary duties of the IJ)
- Huo Qiang Chen v. Holder, 773 F.3d 396 (2d Cir. 2014) (threats alone do not establish past persecution)
- Hongsheng Leng v. Mukasey, 528 F.3d 135 (2d Cir. 2008) (awareness/likelihood of enforcement as to future persecution standard)
- Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554 (2d Cir. 2006) (pattern-or-practice analysis for asylum eligibility)