Gui Qin Wang v. Holder

08-3773-ag Wang v. Holder BIA Nelson, IJ A098 977 458 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 10 th day of August, two thousand ten. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 RICHARD C. WESLEY, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _______________________________________ 12 13 GUI QIN WANG, 14 Petitioner, 15 16 v. 08-3773-ag (L); 17 09-1798-ag (Con) 18 NAC 19 20 ERIC H. HOLDER, JR., UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 ______________________________________ 24 25 FOR PETITIONER: Gang Zhou, New York, New York. 26 27 FOR RESPONDENT: Gregory G. Katsas, Assistant 28 Attorney General, Civil Division, 29 John S. Hogan, Senior Litigation 30 Counsel, Achiezer Guggenheim, 31 Attorney, David H. Wetmore, 32 Attorney, Office of Immigration 33 Litigation, Civil Division, United 34 States Department of Justice, 35 Washington, D.C. 1 UPON DUE CONSIDERATION of these petitions for review of 2 two Board of Immigration Appeals (“BIA”) decisions, it is 3 hereby ORDERED, ADJUDGED, AND DECREED that the petitions for 4 review are DENIED. 5 Petitioner Gui Qin Wang, a native and citizen of the 6 People’s Republic of China, seeks review of: (1) a July 3, 7 2008 order of the BIA affirming the July 6, 2006 decision of 8 Immigration Judge (“IJ”) Barbara A. Nelson denying Wang’s 9 applications for asylum, withholding of removal, and relief 10 under the Convention Against Torture (“CAT”); and (2) an 11 April 21, 2009 order of the BIA denying Wang’s motion to 12 reopen. In re Gui Qin Wang, No. A098 977 458 (B.I.A. July 13 3, 2008), aff’g No. A098 977 458 (Immig. Ct. N.Y. City July 14 6, 2006), In re Gui Qin Wang, No. A098 977 458 (B.I.A. Apr. 15 21, 2009). We assume the parties’ familiarity with the 16 underlying facts and procedural history in this case. 17 I. 08-3773-ag (L) 18 Under the circumstances of this case, this Court 19 reviews the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of 20 Justice, 489 F.3d 517, 523 (2d Cir. 2007). The applicable 21 standards of review are well-established. 8 U.S.C. 22 § 1252(b)(4)(B); see Yanqin Weng v. Holder, 562 F.3d 510, 23 513 (2d Cir. 2009). 2 1 An applicant’s credible testimony alone may suffice to 2 carry her burden of proof in establishing eligibility for 3 asylum. 8 U.S.C. § 1158(b)(1)(B)(ii). In this case, 4 however, the IJ denied that relief after finding that Wang 5 failed to provide reasonably available corroborative 6 evidence in the form of letters from her husband and son 7 concerning material elements of her claim. Wang argues that 8 the IJ erred in relying on the absence of this evidence 9 because neither her husband nor son had personal knowledge 10 of her forced abortions and she was never given an 11 opportunity to explain why she did not produce supporting 12 statements from them. Under the REAL ID Act amendments, 13 which apply to Wang’s application for relief, Matter of 14 S-B-, 24 I. & N. Dec. 42, 45 (B.I.A. 2006), “[w]here the 15 trier of fact determines that the applicant should provide 16 evidence that corroborates otherwise credible testimony, 17 such evidence must be provided unless the applicant does not 18 have the evidence and cannot reasonably obtain the 19 evidence.” See 8 U.S.C. § 1158(b)(1)(B)(ii). Under those 20 provisions, “an IJ, weighing the evidence to determine if 21 the alien has met his burden, may rely on the absence of 22 corroborating evidence adduced by an otherwise credible 23 applicant unless such evidence cannot be reasonably 3 1 obtained.” Chuilu Liu v. Holder, 575 F.3d 193, 197 (2d Cir. 2 2009). 3 Here, the record does not compel a conclusion that the 4 evidence the IJ sought was not reasonably available. The 5 record belies Wang’s assertion that she was not given the 6 opportunity to explain why she did not provide such 7 corroboration. Indeed, when asked why she did not, she 8 responded that she did not think to do so. That response 9 would not compel a reasonable factfinder to conclude that 10 the evidence was not reasonably available. See Majidi v. 11 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). We are also 12 unpersuaded by Wang’s argument that the evidence the IJ 13 sought was immaterial where: (1) Wang testified that her 14 husband knew about her abortions and attempted to obtain 15 compensation for her hospital bills; and (2) Wang testified 16 that her son found her after she fainted following a 17 confrontation with village cadres. 18 The IJ also reasonably found that several inadequacies 19 in Wang’s supporting documents – which included a letter 20 from a co-worker and a letter from a doctor – adversely 21 impacted her ability to meet her burden of proof. 1 See Xiao 1 Wang’s argument that the BIA violated her due process rights by relying on unidentified inconsistencies 4 1 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2 2006) (holding that the weight afforded to the applicant’s 3 evidence in immigration proceedings lies largely within the 4 discretion of the IJ). 5 Because substantial evidence supports the IJ’s finding 6 that Wang failed to sufficiently corroborate her claim, the 7 IJ properly denied her application for asylum. See 8 U.S.C. 8 § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 197-98. 9 Because Wang was unable to show the objective likelihood of 10 persecution needed to make out an asylum claim, she was 11 necessarily unable to meet the higher standard required to 12 succeed on a claim for withholding of removal. See Paul v. 13 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); see also 14 8 U.S.C. § 1231(b)(3)(c). Wang has failed to sufficiently 15 challenge the agency’s denial of CAT relief and does not 16 raise before this Court any claim based on her illegal 17 departure from China. Thus, we deem any such arguments 18 waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 19 n.1, 545 n.7 (2d Cir. 2005). and reversing the IJ’s credibility determination lacks merit. The BIA did not reverse the IJ’s finding that Wang’s testimony was credible, but rather affirmed the IJ’s finding that the inconsistencies impacted upon Wang’s ability to meet her burden. 5 1 II. 09-1798-ag (Con) 2 We review the BIA’s denial of a motion to reopen for 3 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d 4 Cir. 2005) (per curiam). “A motion to reopen proceedings 5 shall not be granted unless it appears to the Board that 6 evidence sought to be offered is material and was not 7 available and could not have been discovered or presented at 8 the former hearing.” 8 C.F.R. § 1003.2(c)(1) (2005). 9 Here, the BIA did not err in finding that the evidence 10 Wang provided in support of her ineffective assistance of 11 counsel claim was available before she filed her appeal. 12 See Matter of Guevara, 20 I&N Dec. 238 (BIA 1991); see 13 Norani v. Gonzales, 451 F.3d 292, 294 & n.3 (2d Cir. 2006). 14 Wang asserts that she was not aware of her previous 15 counsel’s ineffective assistance until after she filed her 16 initial appeal to the BIA. However, she stated in her 17 motion to reopen before the BIA that she discovered that her 18 previous attorney failed to submit her friend’s affidavit 19 when she received her file from him before filing a timely 20 appeal. Accordingly, both she and her new attorney were 21 aware of the alleged ineffective assistance before filing 22 her appeal to the BIA, and the BIA reasonably determined 23 that her evidence was not previously unavailable. 8 C.F.R. 24 § 1003.2(c)(1); Norani, 451 F.3d at 294. 6 1 Thus, because the BIA did not err in finding that Wang 2 failed to provide evidence that was previously unavailable, 3 it did not abuse its discretion in denying her motion to 4 reopen. See INS v. Abudu, 485 U.S. 94, 104-05 (1988); 5 Norani, 451 F.3d at 294; 8 C.F.R. § 1003.2(c)(1). 6 For the foregoing reasons, the petitions for review are 7 DENIED. As we have completed our review, the pending motion 8 for a stay of removal is DISMISSED as moot. 9 10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12 13 14 7