12‐3771
Zheng v. Holder
BIA
Videla, IJ
A088 379 648
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.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 7th day of February, two thousand
fourteen.
PRESENT:
RICHARD C. WESLEY,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
GUI YUE ZHENG,
Petitioner,
v. 12‐3771
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, N.Y.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General;
Emily Anne Radford, Assistant Director; James A.
Hunolt, Senior Litigation Counsel, Office of
Immigration Litigation, United States Department
of Justice, Washington, D.C.
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.
Petitioner Gui Yue Zheng, a native and citizen of China, seeks review of an
August 30, 2012, decision of the BIA affirming an April 27, 2010, decision of
Immigration Judge (“IJ”) Gabriel C. Videla, denying Zheng’s application for
withholding of removal and relief under the Convention Against Torture
(“CAT”). In re Gui Yue Zheng, No. A088 379 648 (B.I.A. Aug. 30, 2012), aff’g No.
A088 379 648 (Immig. Ct. N.Y. City Apr. 27, 2010). We assume the parties’
familiarity with the underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both the IJ’s and
the BIA’s opinions. See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The
applicable standards of review are well‐established. See 8 U.S.C. § 1252(b)(4)(B);
see also Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003).
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Zheng has failed to identify any error in the agency’s denial of relief based
on a lack of corroboration. The agency may require corroboration despite
otherwise credible testimony. See Liu v. Holder, 575 F.3d 193, 198, 198 n.5 (2d Cir.
2009). Before denying a claim solely because of an applicant’s failure to provide
corroborating evidence, the IJ must: (1) identify the specific pieces of missing,
relevant documentation and explain why it was reasonably available; (2) provide
the petitioner an opportunity to explain the omission; and (3) assess any
explanation given. See id. at 198; see also 8 U.S.C. § 1158(b)(1)(B)(ii).
The agency reasonably required Zheng to provide medical evidence that
she had been sterilized, as this evidence was available to her, given her testimony
that she arrived in the United States four years before the merits hearing. In her
brief, Zheng contends that she did not have the opportunity to obtain
corroborating evidence, but she does not address the IJ’s conclusion that she had
ample time before the hearing to obtain medical evidence of sterilization ‐ the
central component of her claim for relief ‐ nor does she contend that this evidence
was not reasonably available. See Kyaw Zwar Tun v. INS, 445 F.3d 554, 568 (2d
Cir. 2006).
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Zheng also argues that she was not given the opportunity to explain the
deficiencies in her evidence, but, at the outset of the merits hearing, her counsel
admitted that he did not know the meaning of the medical term used in the
radiologist’s report, and the IJ advised Zheng that the report did not demonstrate
that she had been sterilized. She was then questioned extensively about the
report during the hearing. Despite this, she did not provide any explanation,
much less a compelling explanation, for her failure to obtain proof of
sterilization. See Majidi v. Gonzales, 430 F.3d 77, 80‐81 (2d Cir. 2005). Nor did she
subsequently provide an explanation on appeal to the BIA. See Liu, 575 F.3d at
199.
Zheng does not challenge the IJ’s finding that a sterilization certificate was
inadmissable, or explain why she was unable to obtain admissible evidence of
sterilization from China. Further, the agency reasonably accorded a household
registration little weight because it was inconsistent with Zheng’s testimony, and
the agency was not compelled to credit her varying explanations for why the
registration indicated that she was residing in China after the date she had left for
the United States. See Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).
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Finally, Zheng’s failure to address the IJ’s finding that she could have
provided a corroborating statement from her husband provides additional
support for the agency’s determination that she did not meet her burden of proof.
Cf. Shunfu Li v. Mukasey, 529 F.3d 141, 146‐47 (2d Cir. 2008).
Zheng’s challenge to the denial of CAT relief is both unexhausted, as it was
not raised before the BIA, and without merit as she failed to establish that she
was sterilized. See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006); Paul v.
Gonzales, 444 F.3d 148, 157 (2d Cir. 2006).
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 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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