09-3101-ag
Zheng v. Holder
BIA
Abrams, IJ
A090 347 270
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 15th day of October, two thousand ten.
5
6 PRESENT:
7 REENA RAGGI,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 QI XIN ZHENG,
14 Petitioner,
15
16 v. 09-3101-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Henry Zhang, Zhang & Associates, New
24 York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Senior Litigation Counsel; Gladys M.
29 Steffens Guzmán, Trial Attorney,
30 Office of Immigration Litigation,
31 Civil Division, United States
32 Department of Justice, Washington,
33 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Qi Xin Zheng, a native and citizen of the
6 People’s Republic of China, seeks review of a July 7, 2009, order
7 of the BIA affirming the October 15, 2007, decision of
8 Immigration Judge (“IJ”) Steven R. Abrams denying Zheng’s
9 application for asylum, withholding of removal, and relief under
10 the Convention Against Torture (“CAT”). In re Qi Xin Zheng, No.
11 A090 347 270 (B.I.A. July 7, 2009), aff’g No. A090 347 270
12 (Immig. Ct. N.Y. City Oct. 15, 2007). We assume the parties’
13 familiarity with the underlying facts and procedural history in
14 this case.
15 Under the circumstances of this case, we review the IJ’s
16 decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t
17 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review factual
18 findings, “including those underlying the immigration court’s
19 determination that an alien has failed to satisfy his burden of
20 proof,” under the substantial evidence standard. Chuilu Liu v.
21 Holder, 575 F.3d 193, 196 (2d Cir. 2009) (internal quotation
22 marks omitted). We treat them as “‘conclusive unless any
23 reasonable adjudicator would be compelled to conclude to the
2
1 contrary.’” Chuilu Liu v. Holder, 575 F.3d at 196, quoting 8
2 U.S.C. § 1252(b)(4)(B).
3 In finding that Zheng failed to meet his burden of proof,
4 the IJ found that: (1) he provided no medical records or other
5 documentation to corroborate his claim that he began practicing
6 Falun Gong because of a stomach ailment; (2) he provided no
7 evidence that he was detained for practicing Falun Gong or that
8 he was injured while in detention; and (3) he produced no
9 witnesses (or other reliable evidence) to corroborate his claim
10 that he practices Falun Gong in the United States, despite the
11 fact that he claims to practice it daily at home, where he lives
12 with an uncle, and occasionally at a public park.
13 Although Zheng argues that the IJ’s corroboration finding is
14 tethered to the adverse credibility determination, which the BIA
15 declined to address, given the IJ’s numerous and specific
16 findings that Zheng failed to provide corroborating evidence
17 despite the fact that he could have reasonably obtained such
18 evidence, the BIA’s determination that Zheng failed to meet his
19 burden of proof is supported by substantial evidence. See id. at
20 197 (“[A]n IJ, weighing the evidence to determine if the alien
21 has met his burden, may rely on the absence of corroborating
22 evidence adduced by an otherwise credible applicant unless such
23 evidence cannot be reasonably obtained.”); see also 8 U.S.C. §
24 1158(b)(1)(B)(ii) (“Where the trier of fact determines that the
3
1 applicant should provide evidence that corroborates otherwise
2 credible testimony, such evidence must be provided unless the
3 applicant does not have the evidence and cannot reasonably obtain
4 the evidence.”); 8 U.S.C. § 1252(b)(4) (“No court shall reverse a
5 determination made by a trier of fact with respect to the
6 availability of corroborating evidence . . . unless the court
7 finds . . . that a reasonable trier of fact is compelled to
8 conclude that such corroborating evidence is unavailable.”).
9 Moreover, although Zheng argues that he reasonably explained why
10 he failed to present the documentary evidence the IJ requested, a
11 reasonable factfinder would not have been compelled to credit his
12 explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
13 Cir. 2005).
14 Because Zheng was unable to meet his burden for asylum, he
15 necessarily failed to meet the higher burden required for
16 withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156
17 (2d Cir. 2006). Although Zheng sets forth the standard for CAT
18 relief in his brief before this Court, he does not challenge the
19 basis of the IJ’s denial of CAT relief – that he did not testify
20 that he would be subject to anything amounting to torture – or
21 otherwise argue that any evidence established a likelihood of
22 torture upon return to China. Accordingly, any challenge to the
23 agency’s denial of CAT relief has been waived. See Yueqing Zhang
24 v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition is
5 DISMISSED as moot.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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