Yong Zhi Zhang v. Holder ( 2014 )

13-2442
Zhang v. Holder
BIA
Hom, IJ
A087 974 674
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of November, two thousand fourteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DENNY CHIN,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 YONG ZHI ZHANG,
15 Petitioner,
16
17 v. 13-2442
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jie Han, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director; Yanal H. Yousef,
29 Trial Attorney; Thomas A. Bryan, Law
30 Clerk, Office of Immigration
31 Litigation, United States Department
32 of Justice, Washington, 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
4 is DENIED.
5 Petitioner Yong Zhi Zhang, a native and citizen of
6 China, seeks review of a May 30, 2013, decision of the BIA,
7 affirming the November 8, 2011, decision of an Immigration
8 Judge (“IJ”), denying asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”). In re
10 Yong Zhi Zhang, No. A087 974 674 (B.I.A. May 30, 2013),
11 aff’g No. A087 974 674 (Immig. Ct. N.Y. City Nov. 8, 2011).
12 We assume the parties’ familiarity with the underlying facts
13 and procedural history in this case.
14 Under the circumstances of this case, we review the
15 IJ’s decision as modified by the BIA, i.e., minus the bases
16 for denying relief that the BIA expressly declined to
17 consider (credibility, nexus, and failure to submit
18 renunciation statement). See Xue Hong Yang v. U.S. Dep’t of
19 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
20 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
21 standards of review are well established. See 8 U.S.C.
22 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
23 (2d Cir. 2009).
2
1 For applications such as Zhang’s, which are governed by
2 the REAL ID Act, “[t]he testimony of the applicant may be
3 sufficient to sustain the applicant’s burden without
4 corroboration, but only if the applicant satisfies the trier
5 of fact that the applicant’s testimony is credible, is
6 persuasive, and refers to specific facts sufficient to
7 demonstrate that the applicant is a refugee.” 8 U.S.C.
8 § 1158(b)(1)(B)(ii). The agency did not err in requiring
9 reasonably available corroborating evidence in Zhang’s case
10 because his testimony was insufficiently “persuasive” and
11 “specific” regarding the beatings he purportedly suffered.
12 See Yan Juan Chen v. Holder, 658 F.3d 246, 252 (2d Cir.
13 2011).
14 “Where the trier of fact determines that the applicant
15 should provide evidence that corroborates otherwise credible
16 testimony, such evidence must be provided unless the
17 applicant does not have the evidence and cannot reasonably
18 obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). The
19 REAL ID Act further makes clear that “[n]o court shall
20 reverse a determination made by a trier of fact with respect
21 to the availability of corroborating evidence . . . [unless]
22 a reasonable trier of fact is compelled to conclude that
3
1 such corroborating evidence is unavailable.”
2 8 U.S.C. § 1252(b)(4)(emphases added). Here, the IJ
3 identified that available corroborating evidence was
4 available in the form of an affidavit from the herbalist who
5 Zhang alleges treated his injuries in 2009 after he was
6 beaten and left in the sun for hours without water.
7 Zhang concedes that he made no attempt to procure such
8 a statement from the herbalist through his wife in China. He
9 argues that his failure to do so was justified, however,
10 because it would have been “futile or imprudent” to seek out
11 the herbalist’s statement as the injury occurred several
12 years ago, the herbalist may have forgotten, or the
13 herbalist might be too afraid to provide a statement. We
14 disagree. Because Zhang failed to even attempt to procure
15 the affidavit based on purely speculative reasons that the
16 corroborating evidence was unavailable, the agency
17 reasonably rejected Zhang’s explanations for not providing
18 such evidence. See 8 U.S.C. § 1252(b)(4).
19 Contrary to Zhang’s contention, the record does not
20 compellingly suggest that the IJ ignored his wife’s letter.
21 See Xiao Ji Chen v. US Dep’t of Justice, 471 F.3d 315, 337
22 n.17 (2d Cir. 2006) (presuming that the agency “has taken
4
1 into account all of the evidence before [it], unless the
2 record compellingly suggests otherwise”). The IJ explicitly
3 acknowledged that her letter was included in the record.
4 And, like Zhang’s testimony, the letter was vague concerning
5 the details of Zhang’s detention and beatings. Therefore,
6 because her letter failed to supply any information
7 regarding the severity of Zhang’s beatings or resulting
8 injuries, which was the agency’s focus in requiring a letter
9 from the herbalist who treated him, it did not corroborate
10 his claim or satisfy his burden of proving past persecution.
11 See Yan Juan Chen, 658 F.3d at 252-53; see also Jian Qiu Liu
12 v. Holder, 632 F.3d 820, 822 (2d Cir. 2011) (“[W]e find no
13 error in the BIA’s conclusion that [petitioner] failed to
14 establish persecution because . . ., prior to his arrest and
15 detention by local police, he suffered only minor bruising
16 from an altercation with family planning officials, which
17 required no formal medical attention and had no lasting
18 physical effect.” (emphasis in original)).
19 We find no error in the agency’s decision declining to
20 admit into evidence the State Department’s 2011 Religious
21 Freedom Report because Zhang proffered it after the
22 submission deadline and did not make a timely motion for its
23
5
1 inclusion. See Immigration Court Practice Manual,
2 § 3.1(d)(ii), (iii).
3 For the foregoing reasons, the petition for review is
4 DENIED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
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