Yue Ming Zheng v. Holder , 439 F. App'x 72 ( 2011 )

10-3132-ag
Zheng v. Holder
BIA
Nelson, IJ
A078 293 096
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 5th day of October, two thousand eleven.
5
6 PRESENT:
7 JOSEPH M. MCLAUGHLIN,
8 GUIDO CALABRESI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 ______________________________________
12
13 YUE MING ZHENG,
14 Petitioner,
15
16 10-3132-ag
17 v. NAC
18
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Gerald Karikari, New York, NY.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; William C. Peachey,
29 Assistant Director; Jonathan
30 Robbins, Attorney, Office of
31 Immigration Litigation, Civil
32 Division, United States Department
33 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, Yue Ming Zheng, a native and citizen of
6 China, seeks review of a July 7, 2010, decision of the BIA
7 affirming the September 12, 2008, decision of Immigration
8 Judge (“IJ”) Barbara A. Nelson denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Zheng, No. A078
11 293 096 (BIA July 7, 2010), aff’g No. A078 293 096 (Immig.
12 Ct. N.Y. City Sept. 12, 2008). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 of the case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
20 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 Zheng contends that the agency did not make an adverse
22 credibility determination and thus his testimony alone
23 established his eligibility for relief. Zheng testified
2
1 that he practiced Falun Gong in the United States and that
2 the Chinese government intercepted Falun Gong materials he
3 sent to his parents and provided a written notice ordering
4 his parents to urge him to surrender. Zheng also testified
5 that his brother previously had been in the same situation
6 for sending Falun Gong materials to their parents, as a
7 result of which his parents had previously received a
8 threatening notice from government officials.
9 Although an applicant’s credible testimony alone may be
10 enough to carry his burden of proof, 8 C.F.R. § 208.13(a),
11 an IJ may nonetheless require that testimony be corroborated
12 if one would reasonably expect corroborating evidence to be
13 available. See Chuilu Liu v. Holder, 575 F.3d 193, 196-98
14 (2d Cir. 2009). Here, the agency determined that Zheng
15 failed to provide the village notice relating to the
16 confiscation of the Falun Gong materials sent by his
17 brother, a letter from his mother describing his brother’s
18 situation, or a letter or testimony from his brother.
19 Because such evidence would have provided support for
20 Zheng’s argument that the government was aware of his Falun
21 Gong activities, the agency reasonably determined that such
22 evidence was material to his claim. See Hongsheng Leng v.
23 Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (holding that an
3
1 applicant seeking to establish a well-founded fear of
2 persecution in the absence of past persecution must make
3 some showing that the government is aware or is likely to
4 become aware of his or her activities – i.e., those
5 activities that will allegedly lead to persecution). In
6 addition, given that Zheng’s mother submitted a letter in
7 which she did not mention the incident involving Zheng’s
8 brother and given that Zheng testified that he could ask his
9 brother to provide a letter but never did so either before
10 or after the IJ’s decision, the record does not compel the
11 conclusion that such evidence was unavailable. See Chuilu
12 Liu, 575 F.3d at 196-99.
13 Although Zheng argues that the letter from his mother
14 and the village notice sufficiently corroborated his claim
15 and that the agency did not give proper weight to that
16 evidence, the agency’s determination that this evidence was
17 of little probative value is entitled to deference. Such
18 deference is particularly due given that the IJ previously
19 found that Zheng was not credible, and given that the notice
20 was not authenticated and Zheng’s mother was an interested
21 witness. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 149
22 (2d Cir. 2007) (holding that the BIA did not abuse its
23 discretion in discrediting a purported village notice where
4
1 the document was not authenticated and the alien had been
2 found not credible by the IJ); see also Xiao Ji Chen v. U.S.
3 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding
4 that the weight afforded to the applicant’s evidence in
5 immigration proceedings lies largely within the discretion
6 of the agency); Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec.
7 209, 215 (BIA 2010) (giving diminished weight to letters
8 from friends and relatives where they were written by
9 interested witnesses not subject to cross-examination).
10 Because the agency reasonably gave diminished weight to
11 Zheng’s evidence and found that Zheng failed to provide
12 other reasonably available corroborative evidence to support
13 his claim that Chinese government officials were aware or
14 likely to become aware of his Falun Gong activities and
15 persecute him as a result, the agency did not err in
16 determining that Zheng failed to meet his burden of proving
17 his eligibility for asylum, withholding of removal, or CAT
18 relief. See Chuilu Liu, 575 F.3d at 196-99; see also Paul
19 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
23 is VACATED, and any pending motion for a stay of removal in
5
1 this petition is DISMISSED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2) and Second
4 Circuit Local Rule 34.1(b).
5
6
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
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6