Zou v. Garland ( 2021 )

19-2003
Zou v. Garland
BIA
Wright, IJ
A201 295 445
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 9th day of September, two thousand twenty-one.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DENNY CHIN,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 CHUAN-QIU ZOU,
14 Petitioner,
15
16 v. 19-2003
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: James A. Lombardi, Esq., Law
24 Office of James A. Lombardi, P.C.,
25 New York, NY.
26
27 FOR RESPONDENT: Brian Boynton, Assistant Attorney
28 General; Anthony P. Nicastro,
1 Assistant Director; S. Nicole
2 Nardone, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Chuan-Qiu Zou, a native and citizen of the
11 People’s Republic of China, seeks review of a June 7, 2019,
12 decision of the BIA affirming a January 31, 2018, decision of
13 an Immigration Judge (“IJ”) denying Zou’s application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Chuan-Qiu Zou, No.
16 A 201 295 445 (B.I.A. June 7, 2019), aff’g No. A 201 295 445
17 (Immig. Ct. N.Y. City Jan. 31, 2018). We assume the parties’
18 familiarity with the underlying facts and procedural history.
19 We have reviewed the IJ’s decision as modified by the
20 BIA, so we review only the corroboration finding on which the
21 BIA relied. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
22 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d
23 268, 271–72 (2d Cir. 2005). The standards of review are well
24 established. See 8 U.S.C. § 1252(b)(4)(B); Wei Sun v.
2
1 Sessions, 883 F.3d 23, 27 (2d Cir. 2018); Yanqin Weng v.
2 Holder, 562 F.3d 510, 513 (2d Cir. 2009). Zou claimed that
3 because he and his parents are Christian, Chinese authorities
4 forced his family to move without full reimbursement,
5 detained his parents for 10 days, and issued a summons for
6 his arrest.
7 The agency did not err in finding that Zou failed to
8 submit reasonably available evidence, including evidence to
9 confirm the demolition of his family’s home in China, the
10 summons for his arrest, and his family’s relocation. “The
11 testimony of the applicant may be sufficient to sustain the
12 applicant’s burden without corroboration, but only if the
13 applicant satisfies the trier of fact that the applicant’s
14 testimony is credible, is persuasive, and refers to specific
15 facts sufficient to demonstrate that the applicant is a
16 refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii). Even absent an
17 adverse credibility determination, a lack of corroboration
18 may be an independent basis for the denial of relief if the
19 agency identifies reasonably available evidence that should
20 have been presented. See Wei Sun, 883 F.3d at 28–31; Chuilu
21 Liu v. Holder, 575 F.3d 193, 196–97 (2d Cir. 2009). “In
3
1 determining whether the applicant has met his burden, the
2 trier of fact may weigh the credible testimony along with
3 other evidence of record. Where the trier of fact determines
4 that the applicant should provide evidence that
5 corroborates otherwise credible testimony, such evidence must
6 be provided unless the applicant does not have the evidence
7 and cannot reasonably obtain the evidence.” 8 U.S.C. §
8 1158(b)(1)(B)(ii). “No court shall reverse a determination
9 made by a trier of fact with respect to the availability
10 of corroborating evidence . . . unless the court finds . . .
11 that a reasonable trier of fact is compelled to conclude that
12 such corroborating evidence is unavailable.” Id.
13 § 1252(b)(4).
14 The record supports the agency’s reliance on a lack of
15 corroboration. The IJ identified the missing evidence,
16 including the summons for Zou’s arrest, photographs of the
17 demolished family home, and proof of a new address or
18 registration of the family’s new home. See Chuilu Liu, 575
19 F.3d at 198–99. Zou’s testimony regarding the summons was
20 unclear and inconsistent, his explanations for the missing
21 evidence at times contradicted other evidence in the record,
4
1 and none of his explanation compelled the conclusion that the
2 missing evidence was unavailable. See 8 U.S.C. § 1252(b)(4);
3 Majidi v. Gonzales, 430 F.3d 77, 80–81 (2d Cir. 2005). The
4 IJ did not err in declining to credit the remainder of Zou’s
5 evidence. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
6 2013) (“We defer to the agency’s determination of the weight
7 afforded to an alien’s documentary evidence.”). The letters
8 from friends and family were entitled to diminished
9 evidentiary weight because they were authored by interested
10 witnesses who were not available for cross-examination. Id.
11 (deferring to agency’s determination that letter from alien’s
12 spouse in China was entitled to “very little weight” “because
13 it was unsworn and . . . submitted by an interested
14 witness”); Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209,
15 215 (B.I.A. 2010) (finding that letters from alien’s friends
16 and family were insufficient support for alien’s claims
17 because they were from interested witnesses not subject to
18 cross-examination), overruled on other grounds by Hui Lin
19 Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).
20 Given the lack of reliable corroboration, the agency did
21 not err in finding that Zou failed to meet his burden of
5
1 proof. See 8 U.S.C. § 1158(b)(1)(B)(ii). That finding is
2 dispositive of asylum, withholding of removal, and CAT relief
3 because all three claims were based on the same factual
4 predicate. Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir.
5 2010).
6 For the foregoing reasons, the petition for review is
7 DENIED. All pending motions and applications are DENIED and
8 stays VACATED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
6