08-4238-ag
Yang v. Holder
BIA
Hom, IJ
A079 319 291
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 8 th day of February, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 PETER W. HALL,
11 Circuit Judges.
12 _______________________________________
13
14 JIN YUN YANG,
15 Petitioner,
16
17 v. 08-4238-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent. 1
22
23 _______________________________________
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1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric. H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Durga Prasad Bhurtel, New York, New
2 York.
3
4 FOR RESPONDENT: Tony West, Assistant Attorney
5 General; Linda S. Wernery, Assistant
6 Director; Susan Bennett Green, Trial
7 Attorney, Office of Immigration
8 Litigation, United States Department
9 of Justice, Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED, that the petition for review
14 is DENIED.
15 Jin Yun Yang, a native and citizen of China, seeks
16 review of a July 30, 2008 order of the BIA affirming the
17 October 6, 2006 decision of Immigration Judge (“IJ”) Sandy
18 K. Hom, which denied her application for asylum, withholding
19 of removal, and relief under the Convention Against Torture
20 (“CAT”). In re Jin Yun Yang, No. A079 319 291 (B.I.A. July
21 30, 2008), aff’g No. A079 319 291 (Immig. Ct. N.Y. City Oct.
22 6, 2006). We assume the parties’ familiarity with the
23 underlying facts and procedural history in this case.
24 We review the agency’s factual findings under the
25 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);
26 see also Manzur v. DHS, 494 F.3d 281, 289 (2d Cir. 2007).
27 We review de novo questions of law and the application of
2
1 law to undisputed fact. See Salimatou Bah v. Mukasey, 529
2 F.3d 99, 110 (2d Cir. 2008).
3 Although an applicant’s credible testimony alone may
4 suffice to carry her burden of proof, an IJ may “require
5 that credible testimony . . . be corroborated in
6 circumstances in which one would expect corroborating
7 evidence to be available and presented in the immigration
8 hearing.” Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir.
9 2009) (internal citation omitted). Before denying a claim
10 based solely on an applicant’s failure to provide
11 corroborating evidence, the agency must “explain
12 specifically, either in its decision or otherwise in the
13 record: (1) why it is reasonable under the BIA’s standards
14 to expect such corroboration; and (2) why [the applicant’s]
15 proffered explanations for the lack of such corroboration
16 are insufficient.” Diallo v. INS, 232 F.3d 279, 290 (2d
17 Cir. 2000); see In re S-M-J-, 21 I. & N. Dec. 722 , 724 (BIA
18 1997).
19 During her initial removal hearing in October 2001, the
20 IJ noted the absence from the record of any medical
21 documentation demonstrating that Yang was forcibly
22 sterilized, any evidence demonstrating that she was fined
3
1 for violating the Chinese family planning policy, and any
2 affidavits or testimony from her relatives, including her
3 husband who was in the United States . On remand, Yang was
4 given another opportunity to present such evidence, but
5 failed to do so.
6 Yang asserts that the agency erred in requiring her to
7 provide evidence that she was forcibly sterilized. However,
8 she herself testified that she had proof that she was
9 sterilized but that she could not find it. Further, Yang
10 testified that she paid a fine to family planning officials
11 but did not recall where she put the receipt. Finally, Yang
12 claimed that her husband could not testify because he was
13 working. As the BIA found, after five years, Yang “did not
14 provide documents that she mentioned in [her] testimony,”
15 and failed to provide the testimony of or an affidavit from
16 her husband. Contrary to Yang’s assertion that she
17 explained his absence, the BIA reasonably rejected Yang’s
18 assertion that her husband could not testify because he had
19 to work, because it did not excuse her failure to provide an
20 affidavit from him. See Diallo, 232 F.3d at 290; Majidi v.
21 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (finding that
22 the agency need not credit an applicant’s explanations
23 unless those explanations would compel a reasonable fact-
4
1 finder to do so). The BIA also noted that Yang did not
2 request a continuance to select a date when her husband
3 could testify.
4 Ultimately, substantial evidence supports the agency’s
5 finding that Yang failed to present reasonably available
6 corroboration and thus failed to meet her burden of
7 establishing eligibility for asylum. See Diallo, 232 F.3d
8 at 290. Because Yang was unable to show the objective
9 likelihood of persecution needed to make out an asylum
10 claim, she was necessarily unable to meet the higher
11 standard required to succeed on a claim for withholding of
12 removal or CAT relief. See Paul v. Gonzales, 444 F.3d 148,
13 156 (2d Cir. 2006); Xue Hong Yang, 426 F.3d at 523.
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
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