Yu Sai Fang v. Holder ( 2011 )

10-1835-ag
Fang v. Holder
BIA
Vomacka, IJ
A098 349 811
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 April, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 ______________________________________
12
13 YU SAI FANG,
14 Petitioner,
15
16 v. 10-1835-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; John S. Hogan, Senior
28 Litigation Counsel; Stefanie A.
29 Svoren, Trial Attorney, Civil
30 Division, Office of Immigration
31 Litigation, U.S. Department of
32 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, Yu Sai Fang, a native and citizen of China,
6 seeks review of an April 13, 2010, decision of the BIA
7 affirming the May 13, 2008, decision of Immigration Judge
8 (“IJ”) Alan Vomacka denying her application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Yu Sai Fang, No. A098 349 811
11 (B.I.A. Apr. 13, 2010), aff’g No. A098 349 811 (Immig. Ct.
12 N.Y.C. May 13, 2008). We assume the parties’ familiarity
13 with the underlying facts and procedural history of the
14 case.
15 Under the circumstances of this case, we review the
16 IJ’s decision minus the arguments for denying relief that
17 were not affirmed by the BIA. See Xue Hong Yang v. U.S.
18 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
19 applicable standards of review are well-established.
20 See 8 U.S.C. § 1252(b)(4)(B); Bah v. Mukasey, 529 F.3d 99,
21 110 (2d Cir. 2008); Dong Gao v. BIA, 482 F.3d 122, 126 (2d
22 Cir. 2007). Because the BIA did not affirm the IJ’s
23 credibility determination, we address only the agency’s
2
1 denial of relief based on Fang’s failure to meet her burden
2 of proof. See Xue Hong Yang, 426 F.3d at 522; Chuilu Liu v.
3 Holder, 575 F.3d 193, 196-98 (2d Cir. 2009).
4 The agency reasonably concluded that Fang failed to
5 meet her burden of proof. Although an applicant’s credible
6 testimony alone may be enough to carry her burden of proof,
7 8 C.F.R. § 208.13(a), the agency may nonetheless require
8 that testimony be corroborated if one would reasonably
9 expect corroborating evidence to be available. See Chuilu
10 Liu, 575 F.3d at 196-98.
11 In determining that Fang’s testimony was insufficiently
12 detailed, consistent, or believable, and thus required
13 corroboration, the agency reasonably relied upon
14 inconsistencies between her testimony and the transcript of
15 her husband’s testimony at his own hearing regarding the
16 details of her abortion, whether they would be permitted to
17 have an additional child under the family planning policy,
18 and when Fang had been forced to have an intrauterine device
19 inserted. The agency was not required to credit Fang’s
20 explanation that her account was correct and her husband’s
21 account was incorrect. See Majidi v. Gonzales, 430 F.3d 77,
22 80-81 (2d Cir. 2005) (holding that the agency need not
23 credit an applicant’s explanations for inconsistent
3
1 testimony unless those explanations would compel a
2 reasonable fact-finder to do so). Although Fang claims that
3 reliance on her husband’s hearing transcript, when he was
4 found not credible, violated her right to due process,
5 because the agency did not rely on this transcript to make
6 an adverse credibility determination, but only to support
7 its finding that Fang needed to provide corroboration, Fang
8 has not established that she was denied a full and fair
9 opportunity to present her claims or was otherwise deprived
10 of fundamental fairness. See Burger v. Gonzales, 498 F.3d
11 131, 134 (2d Cir. 2007).
12 The agency’s determination that further corroboration
13 was required also is supported by its finding that Fang’s
14 submission of an abortion certificate undermined her
15 testimony that she was forced to undergo an abortion, as she
16 was not able to offer a reasonable explanation for why she
17 was issued the certificate or why she did not take steps to
18 verify its authenticity after a government investigation
19 concluded it did not conform with other abortion
20 certificates. See Tu Lin v. Gonzales, 446 F.3d 395, 400
21 (2d Cir. 2006) (explaining that an IJ may properly
22 disbelieve an asylum applicant’s claim that the Chinese
23 government issued an abortion certificate following an
4
1 involuntary abortion, when the State Department reports that
2 its officials are “unaware” of the Chinese government
3 issuing such certificates for anything other than voluntary
4 abortions).
5 Given these inconsistencies and the questionable nature
6 of the abortion certificate, the agency was permitted to
7 require corroborating evidence. See Chuilu Liu, 575 F.3d at
8 196-98. While Fang argues that the agency failed to find
9 that the requested corroborating evidence was reasonably
10 available to her, the agency specifically found that Fang’s
11 husband failed to testify or provide an affidavit, that Fang
12 failed to present medical documents or accident reports
13 regarding her husband’s accident, or affidavits from her
14 husband’s parents as to her husband’s disappearance, and
15 that Fang failed to establish that this evidence was not
16 reasonably available. While Fang further argues that the
17 agency erred in concluding that the evidence was reasonably
18 available to her, as the agency noted, Fang indicated that
19 she was in contact with her husband’s parents, who were
20 taking care of her daughter, and explained only that it
21 would be difficult for them to provide a letter because they
22 were illiterate and old. See Chuilu Liu, 575 F.3d at 197-
23 98; 8 U.S.C. § 1252(b)(4). The agency also reasonably
5
1 concluded that Fang’s daughter’s birth certificate was
2 reasonably available, as Fang testified that she had the
3 original birth certificate in China. Chuilu Liu, 575 F.3d
4 at 197-98.
5 Given that Fang did not present evidence reasonably
6 available to her to support her claim, the agency did not
7 err in determining that she failed to demonstrate her
8 eligibility for asylum or withholding of removal. See
9 Chuilu Liu, 575 F.3d at 196-99.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
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