YE v. MUKASEY, 296 Fed.Appx. 198 (2nd Cir. 2008)

No. 08-0176-ag.United States Court of Appeals, Second Circuit.
October 21, 2008.

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UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.

Theodore N. Cox, New York, NY, for Petitioner.

Gregory G. Katsas, Acting Assistant Attorney General; Anh-Thu P. Mai-Windle, Senior Litigation Counsel; Kathryn M. McKinney, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

PRESENT: JOSEPH M. McLAUGHLIN, GUIDO CALABRESI and REENA RAGGI, Circuit Judges.

SUMMARY ORDER
Xiong Cheng Ye, a native and citizen of the People’s Republic of China, seeks review of a December 19, 2007 order of the BIA, affirming the February 7, 2006 decision of Immigration Judge (“IJ”) Sandy Horn, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xiong Cheng Ye, No. A95 708 515 (B.I.A. Dec. 19, 2007), aff’g No. A95 708 515 (Immig. Ct. N.Y. City Feb. 7, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

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When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. Yan Often v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). We review de novo
questions of law and the application of law to undisputed fact Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

As an initial matter, contrary to the government’s argument, we find that Ye has not abandoned his claim for relief under the CAT. Indeed, as the agency denied Ye’s application for CAT relief for the same reasons it denied his applications for asylum and withholding of removal, his arguments presented here challenge the agency’s denial of all three forms of relief Cf. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).

A. Religion Claim

We find that the agency did not err in determining that Ye failed to establish a well-founded fear of future persecution on account of his religion. The record in this case, which does not include evidence of country conditions in China, would not compel any reasonable adjudicator to find that Ye established an objectively reasonable fear of persecution on account of his attendance at an underground church on two occasions See 8 U.S.C. § 1252(b)(4)(B). Accordingly, the agency reasonably denied Ye’s application for asylum, withholding of removal, and CAT relief based on his religion See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (withholding of removal and CAT claims necessarily fail if the applicant is unable to show the objective likelihood of persecution needed to make out an asylum claim and the factual predicate for the claims is the same).

B. Family Planning Claim

As to Ye’s application for relief based on his family planning claim, that claim fails as a matter of law insofar as it is based on his girlfriend’s forced abortion because the definition of “refugee,” under 8 U.S.C. § 1101(a)(42), does not extend automatically to partners of individuals who have been forced to have an abortion. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 314 (2d Cir. 2007) (en banc). Ye’s claim of past persecution and a well-founded fear of persecution based on his “other resistance” to the family planning policy is also unavailing. See id. (citing 8 U.S.C. § 1101(a)(42)).[*]

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Indeed, substantial evidence supports the agency’s adverse credibility determination. The IJ reasonably relied on: (1) the implausibility of Ye’s ability to depart China using his own passport where he had been summoned to appear in Court and claimed that he feared persecution in “any Court in China,”see Ying Li v. BCIS, 529 F.3d 79, 82-83 (2d Cir. 2008) (declining to disturb the IJ’s adverse credibility determination based, in part, on the implausibility of the fact that the applicant “successfully quit the country using her own passport (despite allegations of nationwide persecution)”); and (2) Ye’s failure to corroborate his claim, see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006) (recognizing that an applicant’s failure to corroborate his or her testimony may bear on credibility because the absence of corroboration makes an applicant unable to rehabilitate testimony that has already been called into question). Moreover, with respect to the letters Ye submitted in support of his application, although the agency may err in rejecting a document solely based on the alien’s failure to properly authenticate it pursuant to 8 C.F.R. § 287.6, see Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404-05 (2d Cir. 2005), it does not err where, as here, its decision to reject documentary evidence is based substantially on legitimate credibility concerns and relies only in part on the fact that a document was not authenticated, see Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148-49 (2d Cir. 2007). Accordingly, the agency’s denial of Ye’s application for asylum, withholding of removal, and CAT relief based on his family planning claim was proper.

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).