Qi Xin Zheng v. Holder

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 8 9 10 5