CICEK v. SESSIONS III (2018)

SUMMARY ORDER

Petitioner Yalcin Cicek, a native and citizen of Turkey, seeks review of a July 29, 2016, decision of the BIA affirming an April 10, 2015, decision of an Immigration Judge (“IJ”) denying him withholding of removal and relief under the Convention Against Torture (“CAT”). In re Yalcin Cicek, No. A097 515 600 (B.I.A. July 29, 2016), aff’g No. A097 515 600 (Immig. Ct. N.Y. City Apr. 10, 2015). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we have reviewed the IJ’s decision as modified by the BIA, i.e., minus the alternative burden finding that was not considered by the BIA. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); see also Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir. 2009). The agency did not err in finding that Cicek failed to satisfy his burden of corroborating that he is Alevi and that he suffered and is likely to suffer harm in Turkey on that account.

“The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see id. § 1231(b)(3)(C); see also Chuilu Liu, 575 F.3d at 196-97. However, “[w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). Cicek does not challenge the decision to require corroboration, but rather argues that the corroborating evidence he did submit was sufficient.

We disagree. The agency did not err in concluding that Cicek failed to provide reasonably available, reliable evidence that he is of the Alevi faith and that he and his family suffered physical attacks and harassment on that account. As an initial matter, the IJ did not err in declining to credit unsworn statements from Cicek’s parents because they were interested parties who were not available for cross-examination. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013). Contrary to Cicek’s contentions, the IJ was not required to explain whether his parents’ testimony was available telephonically given that he bore “the ultimate burden of introducing such evidence without prompting from the IJ,” Chuilu Liu, 575 F.3d at 198, and the IJ was permitted to consider his parents’ interest in the outcome of his proceedings regardless of whether they can legally benefit from a grant of asylum, see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006) (holding that determination of the weight of evidence is largely matter of agency discretion).

The IJ properly identified the missing evidence. As the IJ noted, Cicek could have obtained more reliable evidence that he is Alevi, such as statements or testimony from Alevis that he is acquainted with in the United States. Cicek also failed to submit reasonably available evidence to support his testimony that he and his family were beaten and harassed in Turkey. The IJ was not required to credit Cicek’s unresponsive explanation that he did not provide a statement or testimony from his uncle who lives in the United States because his uncle arrived in the United States after him or his statement that his uncle “may come” if he is wanted. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer a plausible explanation for his inconsistent statements to secure relief; he must demonstrate that a reasonable fact-finder would be compelled to credit his testimony.” (internal quotation marks omitted) ). Nor did the IJ err in rejecting Cicek’s attempts to explain his failure to provide a statement from his brother who is seeking asylum on similar grounds in the United Kingdom because Cicek first stated that he does not speak to his brother, but later testified inconsistently that he could not ask his brother for a statement given that his brother asks him for money all the time. See id.

Accordingly, the agency did not err in finding that Cicek failed to satisfy his burden of demonstrating past persecution or a likelihood of persecution or torture on account of his religion. See 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C). That finding is dispositive of withholding of removal and CAT relief because those forms of relief were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).^*

For the foregoing reasons, the petition for review is DENIED.

FOOTNOTES

FOOTNOTE.   Contrary to the BIA’s conclusion, Cicek’s challenge to the IJ’s denial of withholding of removal necessarily challenged the denial of CAT relief because the IJ denied both forms of relief based on Cicek’s failure to corroborate.