16-4110
Zhang v. Sessions
BIA
Lamb, IJ
A201 059 909
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 TO 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 Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 13th day of July, two thousand eighteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 JINGHUA ZHANG,
14
15 Petitioner,
16
17 v. 16-4110
18 NAC
19
20 JEFFERSON B. SESSIONS III,
21 UNITED STATES ATTORNEY GENERAL,
22
23 Respondent.
24 _____________________________________
25
26
27 FOR PETITIONER: Theodore N. Cox, New York, NY.
28
1 FOR RESPONDENT: Chad A. Readler, Acting Assistant
2 Attorney General; Douglas E.
3 Ginsburg, Assistant Director;
4 John M. McAdams, Jr., Trial
5 Attorney, Office of Immigration
6 Litigation, United States
7 Department of Justice,
8 Washington, DC.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner Jinghua Zhang, a native and citizen of the
15 People’s Republic of China, seeks review of a November 9,
16 2016, decision of the BIA affirming an April 9, 2016,
17 decision of an Immigration Judge (“IJ”) denying Zhang’s
18 application for asylum, withholding of removal, and relief
19 under the Convention Against Torture (“CAT”). In re Jinghua
20 Zhang, No. A201 059 909 (B.I.A. Nov. 9, 2016), aff’g No.
21 A201 059 909 (Immig. Ct. N.Y. City Apr. 9, 2016). We assume
22 the parties’ familiarity with the underlying facts and
23 procedural history in this case.
24 Under the circumstances of this case, we have reviewed
25 both the IJ’s and the BIA’s decisions “for the sake of
26 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
27 524, 528 (2d Cir. 2006). The applicable standards of review
2
1 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
2 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). For the
3 reasons that follow, we conclude that the agency did not err
4 in denying relief based on Zhang’s failure to submit
5 reasonably available corroborating evidence.
6 The governing REAL ID Act corroboration standard provides
7 as follows:
8 The testimony of the applicant may be
9 sufficient to sustain the applicant’s
10 burden without corroboration, but only if
11 the applicant satisfies the trier of fact
12 that the applicant’s testimony is
13 credible, is persuasive, and refers to
14 specific facts sufficient to demonstrate
15 that the applicant is a refugee. . . .
16 Where the trier of fact determines that the
17 applicant should provide evidence that
18 corroborates otherwise credible testimony,
19 such evidence must be provided unless the
20 applicant does not have the evidence and
21 cannot reasonably obtain the evidence.
22
23 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis added). Moreover,
24 “[w]here an Immigration Judge finds that an applicant for
25 asylum or withholding of removal has not provided reasonably
26 available corroborating evidence to establish his claim, the
27 Immigration Judge should first consider the applicant’s
28 explanations for the absence of such evidence and, if a
29 continuance is requested, determine whether there is good
30 cause to continue the proceedings for the applicant to obtain
3
1 the evidence.” Matter of L-A-C-, 26 I. & N. Dec. 516, 516
2 (B.I.A. 2015). “No court shall reverse a determination made
3 by a trier of fact with respect to the availability of
4 corroborating evidence . . . unless . . . a reasonable trier
5 of fact is compelled to conclude that such corroborating
6 evidence is unavailable.” 8 U.S.C. § 1252(b)(4).
7 Zhang asserts that the IJ failed to follow the required
8 procedures before concluding that the Christian pamphlets he
9 allegedly distributed in China were still reasonably
10 available. However, the Government is correct that the
11 agency’s denial of relief for failure to submit reasonably
12 available corroboration evidence was not based on the absence
13 of the pamphlets. The IJ’s statement that Zhang did not
14 submit the pamphlets is in a separate paragraph that follows
15 her determination that Zhang failed to submit reasonably
16 available corroborating evidence. Moreover, the BIA did not
17 mention the pamphlets when affirming the IJ’s finding that
18 Zhang failed to meet his burden due to an absence of
19 reasonably available corroborating evidence. Because the
20 pamphlets were not part of the agency’s corroboration
21 finding, we reject Zhang’s assertion that the IJ should have
22 solicited an explanation for their absence.
4
1 Zhang contends that his failure to produce available
2 evidence of his practice of Christianity in the United States
3 did not call into question his past persecution claim.
4 However, the statute is clear that, “[w]here the trier of
5 fact determines that the applicant should provide evidence
6 that corroborates otherwise credible testimony, such evidence
7 must be provided unless the applicant does not have the
8 evidence and cannot reasonably obtain the evidence.” 8 U.S.C.
9 § 1158(b)(1)(B)(ii). The evidence requested was to
10 corroborate that Zhang was, in fact, a practicing Christian,
11 a fact central to both his claim of past persecution and his
12 fear of future persecution. Since Zhang’s practice of
13 Christianity in the United States allegedly preceded and
14 postdated his claimed past persecution, the agency did not
15 err in determining that Zhang’s failure to provide reasonably
16 evidence to corroborate his practice of Christianity
17 prevented him from discharging his burden of proof. Zhang
18 does not otherwise challenge the agency’s determinations that
19 the proffered evidence was insufficient or that other
20 evidence was reasonably available. See Norton v. Sam’s Club,
21 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently
5
1 argued in the briefs are considered waived and normally will
2 not be addressed on appeal.”).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of removal
5 that the Court previously granted in this petition is VACATED,
6 and any pending motion for a stay of removal in this petition
7 is DISMISSED as moot. Any pending request for oral argument
8 in this petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe,
13 Clerk of Court
6