Rui Yang petitions for review of an order issued by the Board of Immigration Appeals (“BIA”). Yang, a citizen of China, applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), on the grounds that he fears persecution if he returns to China because his family practices Falun Gong. The immigration judge (“IJ”) denied Yang’s application and the BIA dismissed his appeal of the denial. We DENY the petition for review.
I.
Rui Yang arrived in the United States on September 2, 1998, on a J-l visa to participate in a high-school exchange program. On January 24, 2002, his visa was changed to an F-l student visa so he could attend college. Because he no longer had the money to afford it, he stopped attending school on June 24, 2002.
Yang applied for asylum, withholding of removal, and protection under CAT on No
A notice to appear was issued on the basis of Yang’s failure to comply with visa requirements and mailed to his Los Angeles address. 2 Because Yang did not receive the notice and therefore did not appear, he was ordered removed in absentia on March 10, 2006. He then filed a motion to reopen his case, arguing that he had not received a decision regarding his 2001 application for asylum. This motion was granted and his application for asylum was transferred to Dallas.
Yang appeared before an IJ on November 26, 2007, and explained that he did not have a lawyer. He received a continuance until March 17, 2008, to seek an attorney to represent him, and then, because he had not yet located an attorney by that date, he received another continuance until May 19, 2008. At his May 19 hearing, the IJ determined that Yang had “failed to maintain and comply with conditions of [his] changed status.” Although Yang still had not obtained an attorney, the IJ scheduled a hearing before another IJ to allow Yang to present his case for asylum.
Yang’s asylum hearing was held on October 27, 2008. No attorney appeared on Yang’s behalf before the IJ in this proceeding. At the hearing, Yang testified that he feared Chinese authorities would arrest him if he returned to China. Yang explained that while he himself practices Christianity and not Falun Gong, his parents practice Falun Gong. In response to Chinese repression of Falun Gong, Yang said that he had sent pro-Falun Gong articles to his parents that his parents had distributed in China. These materials, Yang contended, caused Chinese authorities to arrest his father.
Yang testified that he believes the Chinese authorities want to harm him because of his support for Falun Gong. The Chinese police have not made any contact with Yang. Nevertheless, Yang said that the authorities are aware that he transmitted pro-Falun Gong materials to his parents because the police would have found envelopes containing Yang’s return address when they searched the house of Yang’s family. Yang further maintained that he fears physical harm should he return to China because of his previous support for Falun Gong. During the year in which Yang’s father was detained, Yang testified, the Chinese authorities beat his father, and they released him only because Yang’s uncle paid a bribe to government officials. Yang said his father had not been detained or physically harmed by the Chinese authorities since his year-long detention ended, but his father had been required to meet periodically with government officials to reaffirm his disapproval of Falun Gong. At the present time, according to Yang, his parents are still in China but suffer from a number of medical ailments.
During the hearing before the IJ, Yang did not present evidence specifically corroborating his testimony. He maintained
On October 31, 2008, the IJ denied Yang’s application for asylum, withholding of removal, and protection under CAT. In explaining his denial of Yang’s application for asylum, the IJ cited Yang’s failure to provide documentary evidence pertaining to his father’s arrest, statements from his parents or uncle, or documentation of his contention that the Chinese authorities intended to arrest him. The IJ also ruled that Yang’s “evidence fails substantively and legally, as it fails to establish a nexus between one of the 5 bases of the Act and his asserted persecution.” Because Yang had failed to establish that he was eligible for asylum, the IJ further determined that he had failed to meet the higher standards for withholding of removal and protection under CAT. Finally, the IJ ruled that Yang was not entitled to voluntary departure, explaining that Yang had not requested voluntary departure and did not meet the standard for voluntary departure in any event.
The BIA affirmed the IJ’s decision. The BIA ruled that Yang “did not provide sufficient documentation to corroborate his claim.” While acknowledging that Yang’s contention that he was unable to provide official documentation of his arrest “may be valid,” the BIA held that Yang could have provided statements from his parents “detailing the father’s detention, the search of their house, and the alleged charge against [Yang],” as well as a statement from his uncle “who [Yang] claimed was the person responsible for obtaining his father’s release.” Such statements “were reasonably available,” the BIA explained, “and it was reasonable to expect such evidence to corroborate the material aspects of [his] case.” Thus, the BIA held that Yang “failed to meet [his] burden of proof because [he] has not provided sufficient evidence of the foundation of [his] claim.” The BIA also ruled that Yang failed to meet the higher burden of showing that he was entitled to withholding of removal or protection under CAT. The BIA did not address the IJ’s determination that Yang did not qualify for voluntary departure or that Yang had not established a well-founded fear of future persecution.
Yang subsequently petitioned this court to review the BIA’s order. In support of his petition for review of the BIA’s order, Yang includes a notice translated from the Chinese purporting to show that Yang faces charges of slander against the Chinese government on account of his support for Falun Gong. This notice, which post
II.
On appeal, Yang argues that the BIA erred by concluding that he had failed to prove that he was a refugee. 3 Specifically, he challenges the BIA’s determination that his failure to provide corroborating evidence provided a sufficient rationale for the BIA to deny his application for asylum, even without making a determination about his credibility. This challenge implicates two questions that we have jurisdiction to consider: first, whether, as a matter of law, it is permissible for the BIA to deny an application for asylum based solely on petitioner’s failure to submit evidence corroborating his testimony; and second, whether the BIA reasonably applied this rule when considering Yang’s application. Yang also contends that the BIA erred by denying his request for withholding of removal and protection under CAT.
A.
“We review factual findings of the BIA and IJ for substantial evidence, and questions of law de novo, giving considerable deference to the BIA’s interpretation of the legislative scheme it is entrusted to administer.”
Zhu,
B.
We first address whether Yang’s failure to submit corroborating evidence justifies the denial of his application for asylum. To be eligible for asylum, an applicant must establish that he is a “refugee.” 8 C.F.R. § 1208.13(a). A person is a refugee if he has suffered past persecution or has a well-founded fear of future persecution. Id. § 1208.13(b). To establish a well-founded fear of future persecution, an applicant for asylum must show a “reasonable probability” of suffering persecution if returned to his home country. Id. § 1208.13(b)(2)(i)(B). The applicant bears the burden of proof of establishing that he is a refugee. Id. § 1208.13(a).
The BIA determined that Yang did not carry his burden of proving that he is a refugee because he did not provide reasonably available evidence corroborating his testimony. This determination was based on the BIA’s interpretation of 8 C.F.R. § 1208.13(a), which reads as follows:
The burden of proof is on the applicant for asylum to establish that he or she is a refugee as defined in section 101(a)(42) of the Act. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.
Id.
4
The BIA’s interpretation of 8 C.F.R. § 1208.13(a) is based on its determination in
Matter of S-M-J-,
21 I.
&
N. Dec. 722, 724-26 (BIA 1997). In
Matter of S-M-J-,
the BIA held that denial of an application for asylum can be based on the absence of
Yang responds that credible testimony should be sufficient to carry a petitioner’s burden of proof in an application for asylum. In support of his argument, he relies on the language of 8 C.F.R. § 1208.13(a), and a Seventh Circuit case,
Georgis v. Ashcroft,
Because we defer to the BIA’s reasonable interpretations of its own regulations,
Zhu,
Like most other circuits to have considered this question, we disagree with Yang’s argument that the BIA can never require credible applicants for asylum to corroborate their testimony. The Third Circuit persuasively explained why such an interpretation is not supported by the language of the regulation:
The regulation states that credible testimony may be enough to meet the applicant’s burden of proof. Saying that something may be enough is not the same as saying that it is always enough; in fact, the most natural reading of the word ‘may’ in this context is that credible testimony is neither per se sufficient nor per se insufficient.
Abdulai,
We cannot say that this interpretation is unreasonable. Two circuits have implicitly rejected this iteration of the BIA’s corroboration rule by remanding due, in part, to the BIA’s failure to make a credibility determination.
See Diallo,
Further, our circuit precedent supports the BIA’s interpretation. We have implicitly approved of the BIA’s requirement that applicants for asylum submit information corroborating their testimony.
Zhao v. Gonzales,
C.
Having determined that the BIA reasonably interpreted its own regulations in Matter of S-M-J- when it ruled that applicants can be required to provide reasonably obtainable corroborating evidence even when their testimony is credible, we next consider whether that rule was appropriately applied to Yang’s application.
The BIA based its determination that Yang did not provide reasonably available corroborating evidence on Yang’s failure to provide a letter from his parents detailing their detention and the search of their house, and a letter from Yang’s uncle detailing how Yang’s father was released. Yang argues that he did not obtain a letter from his parents because he “(generally) always communicated with his parents by telephone.” He further contends that he did not know that such letters would have helped his application, but he might have known better if he had been represented by a lawyer. 6
Our authority to review determinations with respect to availability of evidence is limited. According to the REAL ID Act, “No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence unless the court finds a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.” 7 8 U.S.C. § 1252(b)(4). Thus, we must consider whether the IJ was “compelled to conclude” that the letters from Yang’s family members were unavailable. See id.
We are not convinced that the IJ here was compelled to conclude that letters from Yang’s family members were unavailable. In fact, Yang’s brief does not argue that letters from Yang’s family members were unavailable, or even that they were especially difficult to obtain. While Yang argues that he generally speaks with his parents by telephone, this does not establish that he is unable to obtain letters from them. He does not explicitly address whether a letter from his uncle was reasonably available in his briefing. He instead argues that he did not realize he was supposed to present letters from his family members in his application because he was
To the extent that Yang argues that he would have obtained the required evidence if the IJ had granted him more time, he effectively contends that the IJ abused his discretion by failing to grant Yang a continuance to obtain more evidence. Yang’s failure to raise this argument to the BIA, however, constitutes a failure to exhaust administrative remedies and deprives us of jurisdiction to consider this argument.
See Omari v. Holder,
D.
In addition, Yang raises a number of other arguments over which we do not have jurisdiction. Yang argues that this panel should consider evidence that he submits to this court for the first time on appeal. He informs this court that he has also submitted the evidence to the BIA in a motion to reopen the case. Because the BIA has not yet ruled on this motion, however, Yang has not exhausted his administrative remedies.
See Omari,
E.
Because we deny Yang’s petition for review with respect to his application for asylum, it follows that we also deny his petition for review with respect to his application for withholding of removal, which has a more demanding standard than asy
III.
For the foregoing reasons, we DENY the petition.
Notes
. Because the BIA did not address whether Yang's application for asylum was filed within the time period mandated by statute, we need not address Yang’s argument that "changed circumstances” and "extraordinary circumstances” allowed him to file his application more than one year after he arrived in the United States.
. The administrative record shows that Yang properly notified the BIA that he had changed his address.
. Yang also argues that the IJ erred by holding that Yang’s fear of future persecution was not on account of a protected ground of asylum. Because the BIA did not adopt this rationale for denying Yang’s application, however, we do not consider it here.
See Zhu v. Gonzales,
. The parties agree that the REAL ID Act, which explicitly authorizes the BIA to require corroborating information even when applicants for asylum are credible, does not govern Yang’s burden of proof because Yang applied for asylum in 2001, before Congress passed the REAL ID Act. See Matter of S-B-, 24 I. & N. Dec. 42 (BIA 2006).
. While
Georgis v. Ashcroft,
the Seventh Circuit case cited by Yang, does note that corroborating evidence is not always necessary for applicants for asylum, the court’s decision to remand was based on the applicant’s submission of evidence specifically corroborating her testimony.
See Georgis,
. Yang also explains that he attempted to submit medical records to the BIA, but these records were not accepted because he did not submit them to the IJ. He explains that he left the medical records at home the day of his hearing, and that they had not been translated prior to the hearing. We need not consider these contentions because Yang’s failure to submit corroborating medical records was not a basis for the BIA's denial of his application.
. While the REAL ID Act does not govern Yang’s burden of proof, it does govern our standard of review with respect to the IJ’s determination regarding corroborating evidence. See REAL ID Act of 2005 § 101(e), Pub.L. 109-13, 119 Stat. 231 (providing that amended standard of review set forth in 8 U.S.C. § 1252(b)(4) takes effect on the date the REAL ID Act was enacted).
. While the IJ noted that Yang had the assistance of two lawyers prior to his October 27, 2008, hearing, there is no evidence that these lawyers assisted Yang with the application for asylum that the IJ denied on October 31, 2008.
. Yang was more specific in his argument to the BIA and to this court that he should have received more time to retrieve corroborating medical records from his residence. We need not address this issue because the BIA's decision was not based on Yang's failure to provide these medical records.