Mei Hua Piao v. Holder ( 2014 )

12-4470
Piao v. Holder
BIA
Vomacka, IJ
A087 550 644
A087 970 636
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
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 3rd day of April, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
MEI HUA PIAO, JIN FENG BAI,
Petitioners,
v. 12-4470
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Jiali Pan, Law Offices of Jiali Pan
and Associates, Flushing, New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Francis W. Fraser, Senior
Litigation Counsel; Enitan O.
Otunla, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioners Mei Hua Piao and Jin Feng Bai, who are
married natives and citizens of China, seek review of an
October 17, 2012, order of the BIA, affirming the October
27, 2010, decision of an Immigration Judge (“IJ”), which
denied them asylum, withholding of removal, and relief under
the Convention Against Torture (“CAT”). In re Mei Hua Piao,
Jin Feng Bai, Nos. A087 550 644/970 636 (B.I.A. Oct. 17,
2012), aff’g Nos. A087 550 644/970 636 (Immig. Ct. New York
City Oct. 27, 2010). We assume the parties’ familiarity
with the underlying facts and procedural history in this
case.
Under the circumstances of this case, we review the
IJ’s decision as modified by the BIA. See Xue Hong Yang v.
U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
The applicable standards of review are well established.
See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
For applications such as Petitioners’, which are
governed by the REAL ID Act, “[t]he testimony of the
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applicant may be sufficient to sustain the applicant’s
burden without corroboration, but only if the applicant
satisfies the trier of fact that the applicant’s testimony
is credible, is persuasive, and refers to specific facts
sufficient to demonstrate that the applicant is a refugee.”
See 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis added). “Where
the trier of fact determines that the applicant should
provide evidence that corroborates otherwise credible
testimony, such evidence must be provided unless the
applicant does not have the evidence and cannot reasonably
obtain the evidence.” Yan Juan Chen v. Holder, 658 F.3d
246, 252 (2d Cir. 2011) (quoting 8 U.S.C.
§ 1158(b)(1)(B)(ii)). “No court shall reverse a
determination made by a trier of fact with respect to the
availability of corroborating evidence . . . [unless] a
reasonable trier of fact is compelled to conclude that such
corroborating evidence is unavailable.” 8 U.S.C.
§ 1254(b)(4).
Here, the agency reasonably found that Petitioners
failed to meet their burden due to a lack of reasonably
available corroborating evidence. See Yan Juan Chen, 658
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F.3d at 252.1 Petitioners also fail to specifically
challenge the agency’s permissible rejection of Piao’s
explanations—that she had unsuccessfully asked her mother
for a statement and did not think to ask her father,
although he could have provided one from South Korea. See 8
U.S.C. § 1254(b)(4); cf. Majidi v. Gonzales, 430 F.3d 77,
80-81 (2d Cir. 2005) (stating that agency need not accept an
applicant’s explanation unless a reasonable fact-finder
would be compelled to do so).
In addition, as the government correctly notes,
Petitioners failed to exhaust their argument that Piao was
prevented from adequately explaining the absence of her
medical records because the IJ failed to sufficiently
develop the record. See Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d 104, 124 (2d Cir. 2007) (recognizing that issue
exhaustion is a mandatory, although not jurisdictional,
requirement). Petitioners do not explain what new facts
would have been revealed by further development of the
record. In any case, Petitioners have not shown that the
1
To the extent that petitioners claim their counsel
was ineffective for failing to advise them that
corroborating evidence was necessary, we decline to
address that claim because they did not exhaust it before
the BIA. See Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d
Cir. 1994).
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agency erred in finding they failed to present reasonably
available corroborating evidence in support of their claims.
See Yan Juan Chen, 658 F.3d at 252; 8 U.S.C. § 1254(b)(4).
We have considered petitioners’ remaining arguments and
find they lack merit. For the foregoing reasons, the
petition for review is DENIED. As we have completed our
review, the pending motion for a stay of removal in this
petition is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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